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Daily Rules, Proposed Rules, and Notices of the Federal Government

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 38, 39, 41, 42, 43, 44, 46, 47, 48, 50, 51, 52, and 53

[FAR Case 2011-018; Docket 2011-0018; Sequence 1]

RIN 9000-AM30

Federal Acquisition Regulation; Positive Law Codification of Title 41

AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to conform references throughout the FAR to the new Positive Law Codification of Title 41, United States Code, "Public Contracts."
DATES: Interested parties should submit written comments to the Regulatory Secretariat at one of the addressees shown below on or before November 19, 2012 to be considered in the formation of the final rule.
ADDRESSES: *Regulations.gov: http://www.regulations.gov.Submit comments via the Federal eRulemaking portal by searching for "FAR Case 2011-018". Select the link "Submit a Comment" that corresponds with "FAR Case 2011-018." Follow the instructions provided at the "Submit a Comment" screen. Please include your name, company name (if any), and "FAR Case 2011-018" on your attached document.

*Fax:202-501-4067.

*Mail:General Services Administration, Regulatory Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th Floor, Washington, DC 20417.

Instructions:Please submit comments only and cite FAR Case 2011-018, in all correspondence related to this case. All comments received will be posted without change tohttp://www.regulations.gov,including any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Edward N. Chambers, Procurement Analyst, at 202-501-3221, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAR Case 2011-018.
SUPPLEMENTARY INFORMATION: I. Background

On January 4, 2011, Public Law 111-350 enacted a new codified version of Title 41 United States Code (U.S.C.), entitled “Public Contracts.” The purpose of this proposed rule is to update all references to Title 41 in the FAR to conform to the positive law codification.

Furthermore, this rule proposes further updates to complete the implementation of the recodification of title 40 in the FAR (see final rule under FAR Case 2005-010, Title 40 of United States Code Reference Corrections, published in theFederal Registerat 70 FR 57453 on September 30, 2005).

II. Discussion and Analysis

There are three types of changes throughout the FAR, including some standard forms:

A. Change to the citation (e.g.,“41 U.S.C. 10a-10d” now reads “41 U.S.C. chapter 83”).

B. Change to the popular names of the Acts (e.g.,the “Service Contract Act of 1965” is now the “Service Contract Labor Standards statute”). A table providing the popular names of the Acts, the present statutory citation, and the new titles of the statutes is proposed at FAR 1.110. This table covers Acts under both titles 40 and 41.

C. Changes to terminology which did not involve substantive changes to the meaning of the statutes. The changes are summarized in the following table:

Statutory cite in 41 U.S.C. Change from To FAR cites 1. 104 Definition of COTS item: “section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702)” “46 U.S.C. 40102(4)” 2.101, 22.1801, 52.209-6, 52.222-54, 52.225-1, 52.225-3, 52.225-9, 52.225-11. 2. 2105(c)(1) “has engaged in conduct constituting a violation of”/“constitutes a violation of” “has violated”/“violates.” 3.703, 52.203-8. 3. 1705 and 4106(g)(2) “competition advocate” “advocate for competition” 6.000, 6.304(a), subpart 6.5 (multiple), 7.104(c), 8.405-3(e)(3), 8.405-6(d), 9.202(b), 13.501(a)(2)(ii), 16.505(b)(2)(ii)(C). 4. 3901 “in its discretion,” Delete phrase 52.203-5. 5. 6308 “let” “award” 3.303(c)(5), 19.800(a), 52.219-8. 6. 6701 “Outer Continental Shelf lands” “outer Continental Shelf” 22.305, 22.1001, 52.213-4(b). 7. 7103 “duly” Delete word 33.201, 33.207(e), 52.233-1. 8. 8501 and 29 CFR 525 “handicapped” “disabled” or “workers with disabilities” 5.202(a)(4), 9.102(b)(3), 15.404-4(d)(1)(iii), 22.102-1(h), 22.1019, 52.222—20, -38, 41. 9. Chapter 85 (see 48 U.S.C. note prec. 1681) Trust Territory of the Pacific Delete 52.212-3, Alt I, 52.219-1, Alt I. 10. 8701 and 8702 “directly or indirectly” Delete 3.502-1(a), 52.203-7(a). 11. 8703 “Department of Justice” “Attorney General” 3.502-2(g), 52.203-7(c)(2).

Additionally, this case makes numerous minor corrections to the FAR apart from the changes directly due to the recodification:

• References to title 10 of the United States Code are corrected at FAR 6.302-5(c)(1), 7.102(a)(2), 7.103(a), 7.202(a), 15.303(b)(4) and (6), 15.404-1(f)(2), 32.006-1(a), and 32.006-5.

• Codification citations are added for Authorization Acts, for Appropriations Acts and other public laws at FAR 8.602(a), 9.402(d), 12.000, 12.102(g)(1), 12.504(a)(13), 16.505(a)(9), 19.201(d), 23.704(b)(1)(ii), 25.405, 25.700(b), 26.400, 28.106-4(b), 28.106-6(d), 31.205-1(f)(8), 32.112-1(a), 32.112-2(a), 52.212-5(a)(3) and (c)(7), (e)(1)(xiii), and in (e)(1)(ii)(M) of Alternate II; 52.213-4(a)(1)(vii), (b)(1)(x), 52.226-6(b), and 52.228-12.

• FAR 12.201 deletes the reference to Public Law 103-355, which is already covered at 12.000.

• The title of the clause at FAR 52.244-6 is corrected at FAR 12.502(b) and 44.402(b).

• FAR 1.501 is corrected to conform to 41 U.S.C. 1707 and FAR 1.301.

• FAR 22.1502—the relationship of three statutes is conformed to language used in Executive Order 13126.

• Obsolete references are deleted at FAR 43.102(c) and 50.103-3(c).

• The Executive order citation is added for FAR 52.222-54, Employment Eligibility Verification, at 52.212-5(e)(1)(xii) and Alternate II at (e)(1)(ii)(L).

III. Executive Order 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

The Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) 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 does not change or add any policies or procedures. The rule merely updates references and terminology. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2011-018) in all correspondence.

V. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however, these changes to the FAR do not imposed additional information collection requirements to the paperwork burden previously approved under the Office of Management and Budget Control Number 1215-0017, titled: Records to be Kept by Employers-FLSA; 1215-0119, titled: Requirements of a Bono Fide Thrift or Savings Plan; 1215-0140, titled: Affected Public: Business or other for-profit; Federal Government; State, Local or Tribal Government; 1215-0149, titled: Optional Use Payroll Form under the Davis-Bacon Act; 1215-0150, titled: Nondisplacement of Qualified Workers Under Service Contracts; 9000-0014, titled: Statement and Acknowledgement; 9000-0024, titled: Buy American Act Certificate; 9000-0025, titled: Trade Agreement Certificate; 9000-0035, titled: Claims and Appeals; 9000-0045, titled: Bid Guarantees, Performance and Payment Bonds, and Alternative Payment Protections; 9000-0070, titled: Payments; 9000-0089, titled: Request for Authorization of Additional Classification and Rate, Standard Form 1444; 9000-0090, titled: Rights in Data and Copyrights; 9000-0091, titled: Anti-Kickback Procedures; 9000-0094, titled: Debarment and Suspension; 9000-0102, titled: Prompt Payment; 9000-0113, titled: Acquisition of Helium; 9000-0130, titled: Buy American Act-Free Trade Agreements-Israeli Trade Act Certificate; 9000-135, titled: Prospective Subcontractor Requests for Bonds; 9000-0136, titled: Commercial Item Acquisitions; 9000-0138, titled: Contract Financing; 9000-0141, titled: Buy American Act—Construction; 9000-0154, titled: Davis Bacon Act—Price Adjustments (Actual Method).

List of Subjects in 48 CFR Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 38, 39, 41, 42, 43, 44, 46, 47, 48, 50, 51, 52, and 53.

Government procurement.

Dated: August 30, 2012. Laura Auletta, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 38, 39, 41, 42, 43, 44, 46, 47, 48, 50, 51, 52, and 53 as set forth below:

1. The authority citation for 48 CFR parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 38, 39, 41, 42, 43, 44, 46, 47, 48, 50, 51, 52, and 53 is revised to read as follows:

Authority:

40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM

2. Amend section 1.103 by revising paragraph (a) to read as follows:

1.103 Authority.

(a) The development of the FAR System is in accordance with the requirements of (41 U.S.C. chapter 13, Acquisition Councils).

1.106 [Amended]

3. Amend section 1.106 by removing from the introductory paragraph “(Pub. L. 96-511)” and adding “(44 U.S.C. chapter 35)” in its place.

4. Amend section 1.107 by revising the introductory paragraph to read as follows:

1.107 Certifications.

In accordance with 41 U.S.C. 1304, a new requirement for a certification by a contractor or offeror may not be included in this chapter unless—

5. Amend section 1.109 by removing from paragraph (a) “41 U.S.C. 431a” and adding “41 U.S.C. 1908” in its place; and revising paragraph (c) to read as follows:

1.109 Statutory acquisition-related dollar thresholds—adjustment for inflation.

(c) The statute does not permit escalation of acquisition-related dollarthresholds established by 40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction 41 U.S.C. chapter 67, Service Contract Labor Standards; or the United States Trade Representative pursuant to the authority of the Trade Agreements Act of 1979 (19 U.S.C. 2511et seq.).

6. Add section 1.110 to read as follows:

1.110 Positive Law codification.

(a) Public Law 107-217 revised, codified, and enacted as title 40, United States Code, Public Buildings, Property, and Works, certain general and permanent laws of the United States.

(b) Public Law 111-350 revised, codified, and enacted as title 41, United States Code, Public Contracts, certain general and permanent laws of the United States.

(c) The following table provides cross references between the historical titles of the acts, and the current reference in title 40 or title 41.

Historical title of Act Division/chapter/subchapter Title Anti-Kickback Act 41 U.S.C. chapter 87 Kickbacks. Brooks Architect-Engineer Act 40 U.S.C. chapter 11 Selection of Architects and Engineers. Buy American Act 41 U.S.C.chapter 83 Buy American. Contract Disputes Act of 1978 41 U.S.C.chapter 71 Contract Disputes. Contract Work Hours and Safety Standards Act 40 U.S.C. chapter 37 Contract Work Hours and Safety Standards. Davis-Bacon Act 40 U.S.C. chapter 31, Subchapter IV Wage Rate Requirements (Construction). Drug-Free Workplace Act 41 U.S.C.chapter 81 Drug-Free Workplace. Federal Property and Administrative Services Act of 1949, Title III 41 U.S.C. Div. C of subtitle I* Procurement. Javits-Wagner-O'Day Act 41 U.S.C. chapter 85 Committee for Purchase from People Who Are Blind or Severely Disabled. Miller Act 40 U.S.C. chapter 31, subchapter III Bonds. Office of Federal Procurement Policy Act 41 U.S.C. Div. B of subtitle I** Office of Federal Procurement Policy. Procurement Integrity Act 41 U.S.C. chapter 21 Restrictions on Obtaining and Disclosing Certain Information. Service Contract Act of 1965 41 U.S.C. chapter 67 Service Contract Labor Standards. Truth in Negotiations Act 41 U.S.C. chapter 35 Truthful Cost or Pricing Data. Walsh-Healey Public Contracts Act 41 U.S.C. chapter 65 Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000. * Except sections 3302, 3501(b), 3509, 3906, 4710, and 4711. ** Except sections 1704 and 2303.

7. Amend section 1.301 by revising the first sentence of paragraph (b) to read as follows:

1.301 Policy.

(b) Agency heads shall establish procedures to ensure that agency acquisition regulations are published for comment in theFederal Registerin conformance with the procedures in subpart 1.5 and as required by 41 U.S.C.1707, and other applicable statutes, when they have a significant effect beyond the internal operating procedures of the agency or have a significant cost or administrative impact on contractors or offerors. * * *

1.501-1 [Amended]

8. Amend section 1.501-1 by removing from the first sentence “having a significant” and adding “and which have a significant” in its place.

1.602-3 [Amended]

9. Amend section 1.602-3 by removing from paragraph (b)(5) “under the Contract Disputes Act of 1978” and adding “under 41 U.S.C. chapter 71, Contract Disputes,” in its place.

1.603-1 [Amended]

10. Amend section 1.603-1 by removing “Subsection 414(4) of Title 41, United States Code,” and adding “41 U.S.C. 1702(b)(3)(F)” in its place.

PART 2—DEFINITIONS OF WORDS AND TERMS

11. Amend section 2.101 in paragraph (b) by—

a. Removing from the definition “Certified cost or pricing data” the citation “41 U.S.C. 254b)” and adding “41 U.S.C. chapter 35)” in its place;

b. Removing from the definition “Chief Acquisition Officer” the words “to the Services Acquisition Reform Act of 2003, Section 1421 of Public Law 108-136” and adding “41 U.S.C. 1702” in its place;

c. Removing from the definition “Claim” the words “the Contract Disputes Act of 1978” and “by the Act” and adding “41 U.S.C. chapter 71, Contract Disputes,” and “by the statute” in its place, respectively;

d. Removing from the definition “Commercially available off-the-shelf (COTS) item”, in paragraph (2), “section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702)” and adding “46 U.S.C. 40102(4),” in its place;

e. Removing from the first sentence of the definition “Cost or pricing data” the words “41 U.S.C. 254b)” and adding “41 U.S.C. chapter 35) in its place;

f. Removing from the definition “Humanitarian or peacekeeping operation” the citation “41 U.S.C. 259(d)” and adding “41 U.S.C. 153(2)” in its place;

g. Revising the definition “Ineligible”;

h. Removing from the definition “Major system”, in paragraph (3), “41 U.S.C. 403” and adding “41 U.S.C. 109” in its place;

i. Revising the definition “Micro-purchase threshold”;

j. Revising the definition “Senior procurement executive”;

k. Removing from the definition “Simplified acquisition threshold” in the introductory paragraph, “(41 U.S.C. 428a)” and adding “(41 U.S.C. 1903)” in its place;

l. Removing from the definition “Technical data” the words “(See 41 U.S.C. 403(8))” and adding “(See 41 U.S.C. 116)” in its place; and

m. Revising the definition “Value engineering” to read as follows:

2.101 Definitions.

(b) * * *

(2) * * *

Ineligiblemeans excluded from Government contracting (and subcontracting, if appropriate) pursuant to statutory, Executive order, or regulatory authority other than this regulation (48 CFR Chapter 1) and its implementing and supplementing regulations; for example, pursuant to—

(1) 40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction), and its related statutes and implementing regulations;

(2) 41 U.S.C. chapter 67, Service Contract Labor Standards;

(3) The Equal Employment Opportunity Acts and Executive orders;

(4) 41 U.S.C. chapter 65, Contracts for Material, Supplies, Articles, and Equipment Exceeding $15,000;

(5) 41 U.S.C. chapter 83, Buy American; or

(6) The Environmental Protection Acts and Executive orders.

Micro-purchase thresholdmeans $3,000, except it means—

(1) For acquisitions of construction subject to 40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction), $2,000;

(2) For acquisitions of services subject to 41 U.S.C. chapter 67, Service Contract Labor Standards, $2,500; and

(3) For acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical or radiological attack as described in 13.201(g)(1), except for construction subject to 40 U.S.C. chapter 31, subchapter IV, Wage Rate Requirements (Construction) (41 U.S.C. 1903]—

(i) $15,000 in the case of any contract to be awarded and performed, or purchase to be made, inside the United States; and

(ii) $30,000 in the case of any contract to be awarded and performed, or purchase to be made, outside the United States.

Senior procurement executivemeans the individual appointed pursuant to 41 U.S.C. 1702(c) who is responsible for management direction of the acquisition system of the executive agency, including implementation of the unique acquisition policies, regulations, and standards of the executive agency.

Value engineeringmeans an analysis of the functions of a program, project, system, product, item of equipment, building, facility, service, or supply of an executive agency, performed by qualified agency or contractor personnel, directed at improving performance, reliability, quality, safety, and life-cycle costs 41 U.S.C. 1711). For use in the clause at 52.248-2, see the definition at 52.248-2(b).

PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

12. Amend section 3.104-1 in the definition “Contractor bid or proposal information” by revising paragraph (1); and removing from the definition “Federal agency procurement” the words “of the Act” and adding “of 41 U.S.C. chapter 21” in its place.

The revised text reads as follows:

3.104-1 Definitions.

Contractor bid or proposal information* * *

(1) Cost or pricing data (as defined by 10 U.S.C. 2306a(h)) with respect to procurements subject to that section, and 41 U.S.C. 3501(a)(2), with respect to procurements subject to that section.

13. Amend section 3.104-2 by revising paragraph (a) to read as follows:

3.104-2 General.

(a) This section implements 41 U.S.C. chapter 21, Restrictions on Obtaining and Disclosing Certain Information. Agency supplementation of 3.104, including specific definitions to identify individuals who occupy positions specified in 3.104-3(d)(1)(ii), and any clauses required by 3.104 must be approved by the senior procurement executive of the agency, unless a law establishes a higher level of approval for that agency.

3.104-3 [Amended]

14. Amend section 3.104-3 by—

a. Removing from the introductory text of paragraph (a) “(subsection 27(a) of the Act)” and adding “(41 U.S.C. 2102)” in its place;

b. Removing from paragraph (b) “(subsection 27(b) of the Act)” and adding “(41 U.S.C. 2102)” in its place;

c. Removing from the introductory text of paragraph (c) “(subsection 27(c) of the Act)” and adding “(41 U.S.C. 2103)” in its place;

d. Removing from paragraph (c)(4) “(subsection 27(c) of the Act)” and adding “(41 U.S.C. 2103)” in its place; and

e. Removing from the introductory text of paragraph (d) “subsection 27(d) of the Act” and adding “(41 U.S.C. 2103)” in its place.

3.104-4 [Amended]

15. Amend section 3.104-4 by removing from paragraph (f)(1) “section 27 of the Act” and adding “41 U.S.C. chapter 21” in its place.

3.104-6 [Amended]

16. Amend section 3.104-6 by removing from paragraphs (a), (c), and (d)(3) “subsection 27(d) of the Act” and adding “41 U.S.C. 2104” in its place.

3.104-7 [Amended]

17. Amend section 3.104-7 by—

a. Removing from the introductory text of paragraph (a) “subsection 27(a), (b), (c), or (d) of the Act” and adding “41 U.S.C. 2102, 2103 or 2104” in its place;

b. Removing from paragraph (b)(5) “subsection 27(e) of the Act” and adding “41 U.S.C. 2105” in its place;

c. Removing from paragraph (c) “the Act” and adding “41 U.S.C. chapter 21” in its place; and

d. Removing from the introductory text of paragraph (d) “section 27 of the Act” and adding “41 U.S.C. chapter 21” in its place;

e. Removing from paragraph (d)(2)(ii)(A) “subsections 27(a) or (b) of the Act” and adding “41 U.S.C. 2102” in its place; and

f. Removing from paragraph (d)(2)(ii)(B) “subsection 27(c)(1) of the Act” and adding “41 U.S.C. 2105(a)” in its place.

3.104-8 [Amended]

18. Amend section 3.104-8 by removing from the introductory paragraph “the Act” and adding 41 U.S.C. chapter 21” in its place; and removing from paragraphs (a) and (b) “subsection 27(e) of the Act” and adding “41 U.S.C. 2105” in its place.

3.303 [Amended]

19. Amend section 3.303 by removing from paragraph (a) “41 U.S.C. 253b(i)” and adding “41 U.S.C. 3707” in its place; and removing from paragraph (c)(5) “let by” and adding “awarded by” in its place.

3.400 [Amended]

20. Amend section 3.400 by removing “41 U.S.C. 254(a)” and adding “41 U.S.C. 3901” in its place.

3.402 [Amended]

21. Amend section 3.402 by removing from the introductory paragraph “41 U.S.C. 254(a)” and adding “41 U.S.C. 3901” in its place.

3.502-1 [Amended]

22. Amend section 3.502-1 by removing from the definition “Kickback” “, directly or indirectly,”.

23. Amend section 3.502-2 by—

a. Revising the introductory text, and paragraphs (d)(3) and (g);

b. Removing from the introductory text of paragraph (h), and paragraphs (i)(1), and (i)(2) “the Act” and adding “Kickbacks statute” in its place; and

c. Revising (j) to read as follows:

3.502-2 Subcontractor Kickbacks.

The Anti-Kickback Act of 1986 (now codified at 41 U.S.C. chapter 87, Kickbacks,) was passed to deter subcontractors from making payments and contractors from accepting payments for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contractor a subcontract relating to a prime contract. The Kickbacks statute—

(d) Provides that—

(3) An offset under subparagraph (d)(1) or a direction under subparagraph (d)(2) of this subsection is a claim by the Government for the purposes of 41 U.S.C. chapter 71, Contract Disputes.

(g) Requires a prime contractor or subcontractor to report in writing to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Attorney General any possible violation of the Kickbacks statute when the prime contractor or subcontractor has reasonable grounds to believe such violation may have occurred.

(j) Notwithstanding paragraph (i) of this subsection, a prime contractor shall cooperate fully with any Federal Government agency investigating a violation of 41 U.S.C. 8702 (See also 41 U.S.C. 8703(b)).

3.503-1 [Amended]

24. Amend section 3.503-1 by removing “41 U.S.C. 253g” and adding “41 U.S.C. 4704” in its place.

25. Amend section 3.703 by revising the introductory text of paragraph (b) and (b)(1) to read as follows:

3.703 Authority.

(b) 41 U.S.C. 2105(c) requires a Federal agency, upon receiving information that a contractor or a person has violated 41 U.S.C. 2102, to consider rescission of a contract with respect to which—

(1) The contractor or someone acting for the contractor has been convicted for an offense punishable under 41 U.S.C. 2105(a); or

3.704 [Amended]

26. Amend section 3.704 by removing from the introductory text of paragraph (c) “subsection 27(e) of the OFPP Act” and adding “41 U.S.C. 2105” in its place.

27. Amend section 3.705 by revising paragraph (e) to read as follows:

3.705 Procedures.

(e)Final agency decision.The final agency decision shall be based on the information available to the agency head or designee, including any pertinent information submitted or, if a hearing was held, presented at the hearing. If the agency decision declares void and rescinds the contract, the final decision shall specify the amounts due and property to be returned to the agency, and reflect consideration of the fair value of any tangible benefits received and retained by the agency. Notice of the decision shall be sent promptly by certified mail, return receipt requested. Rescission of contracts under the authority of the Act and demand for recovery of the amounts expended and property transferred therefore, is not a claim within the meaning of 41 U.S.C. chapter 71, Contract Disputes, or part 33. Therefore, the procedures required by the statute and the FAR for the issuance of a final contracting officer decision are not applicable to final agency decisions under this subpart, and shall not be followed.

28. Amend section 3.900 by revising paragraph (a) to read as follows:

3.900 Scope of subpart.

(a) Sections 3.901 through 3.906 of this subpart implements 10 U.S.C. 2409 and 41 U.S.C. 4705.

PART 4—ADMINISTRATIVE MATTERS

29. Revise section 4.500 to read as follows:

4.500 Scope of subpart.

This subpart provides policy and procedures for the establishment and use of electronic commerce in Federal acquisition as required by 41 U.S.C. 2301.

4.502 [Amended]

30. Amend section 4.502 by removing from the introductory text of paragraph (b) “Section 30 of the OFPP Act (41 U.S.C. 426)” and adding “41 U.S.C. 2301” in its place.

31. Amend section 4.602 by revising paragraph (a)(2) to read as follows:

4.602 General.

(a) * * *

(2) A means of measuring and assessing the effect of Federal contracting on the Nation's economy and the extent to which small, veteran-owned small, service-disabled veteran-owned small, HUBZone small, small disadvantaged, women-owned small business concerns, and AbilityOne nonprofit agencies operating under 41 U.S.C. chapter 85, Committee for Purchase from People Who Are Blind or Severely Disabled, are sharing in Federal contracts;

4.805 [Amended]

32. Amend section 4.805 by removing from paragraph (b)(1) “Act” and adding “statute” in its place.

4.1202 [Amended]

33. Amend section 4.1202 by—

(a) Removing from paragraphs (p) and (q) “Act” and adding “Labor Standards” in its place;

(b) Removing from paragraph (u) “Buy American Act” and adding “Buy American Certificate.” in their places; and

(c) Removing from paragraph (v) “Buy American Act” and adding “Buy American-Free” in its place.

PART 5—PUBLICIZING CONTRACT ACTIONS

34. Amend section 5.101 by revising the introductory text of paragraph (a) to read as follows:

5.101 Methods of disseminating information.

(a) As required by the Small Business Act (15 U.S.C. 637(e)) and 41 U.S.C. 1708, contracting officers must disseminate information on proposed contract actions as follows:

35. Amend section 5.201 by revising paragraph (a) to read as follows:

5.201 General.

(a) As required by the Small Business Act (15 U.S.C. 637(e)) and 41 U.S.C. 1708, agencies must make notices of proposed contract actions available as specified in paragraph (b) of this section.

36. Amend section 5.202 by revising paragraph (a)(4) to read as follows:

5.202 Exceptions.

(a) * * *

(4) The proposed contract action is expressly authorized or required by a statute to be made through another Government agency, including acquisitions from the Small Business Administration (SBA) using the authority of section 8(a) of the Small Business Act (but see 5.205(f)), or from a specific source such as a workshop for the blind under the rules of theCommittee for the Purchase from People Who Are Blind or Severely Disabled;

37. Amend section 5.207 by removing from paragraph (c)(14)(i) “Act”; and revising paragraph (c)(14)(iii) to read as follows:

5.207 Preparation and transmittal of synopses.

(c) * * *

(14) * * *

(iii) If the solicitation will include the FAR clause at 52.225-11, Buy American-Construction Materials under Trade Agreements, 52.225-23, Required Use of American Iron, Steel, and Manufactured Goods—Buy American Statute—Construction Materials under Trade Agreements, or an equivalent agency clause, insert the following notice in the synopsis: “One or more of the items under this acquisition is subject to the World Trade Organization Government Procurement Agreement and Free Trade Agreements.”

PART 6—COMPETITION REQUIREMENTS
6.000 [Amended]

38. Amend Section 6.000 by removing “and competition advocates” and adding “and advocates for competition” in its place.

6.101 [Amended]

39. Amend section 6.101 by removing from paragraphs (a) and (b) “41 U.S.C. 253” and adding “41 U.S.C. 3301” in their places.

6.102 [Amended]

40. Amend section 6.102 by removing from paragraph (d)(3) “41 U.S.C. 259(b)(3)(A)” and adding “41 U.S.C. 152(3)(A)” in its place.

6.301 [Amended]

41. Amend section 6.301 by removing from paragraph (a) “41 U.S.C. 253(c)” and adding “41 U.S.C. 3304” in its place (twice).

6.302-1 [Amended]

42. Amend section 6.302-1 by—

(a) Removing from paragraph (a)(1) “41 U.S.C. 253(c)(1)” and adding “41 U.S.C. 3304(a)(1)”;

(b) Removing from paragraph (a)(2)(i)(C) “41 U.S.C. 253(d)(1)(A)” and adding “41 U.S.C. 3304(b)(1)”; and

(c) Removing from paragraph (a)(2)(ii)(B) “41 U.S.C. 253(d)(1)(B)” and adding “41 U.S.C. 3304(b)(2)” in its place.

6.302-2 [Amended]

43. Amend section 6.302-2 by removing from paragraph (a)(1) “41 U.S.C. 253(c)(2)” and adding “41 U.S.C. 3304(a)(2)” in its place.

6.302-3 [Amended]

44. Amend section 6.302-3 by removing from paragraph (a)(1) “41 U.S.C. 253(c)(3)” and adding “41 U.S.C. 3304(a)(3)” in its place.

6.302-4 [Amended]

45. Amend section 6.302-4 by removing from paragraph (a)(1) “41 U.S.C. 253(c)(4)” and adding “41 U.S.C. 3304(a)(4)” in its place.

46. Amend section 6.302-5 by revising paragraphs (a)(1), (b)(2), (c)(1)(ii), and (c)(1)(iii) to read as follows:

6.302-5 Authorized or required by statute.

(a)Authority.(1) Citations: 10 U.S.C. 2304(c)(5) or 41 U.S.C. 3304(a)(5).

(b) * * *

(2) Qualified nonprofit agencies for the blind or other severely disabled—41 U.S.C. chapter 85, Committee for Purchase From People Who Are Blind or Severely Disabled (see subpart 8.7).

(c)Limitations.

(1) * * *

(ii) Refers to 10 U.S.C. 2304(k) for armed services acquisitions or 41 U.S.C. 3105 for civilian agency acquisitions; and

(iii) States that award to that entity shall be made in contravention of the merit-based selection procedures in 10 U.S.C. 2304(k) or 41 U.S.C. 3105, as appropriate. However, this limitation does not apply—

6.302-6 [Amended]

47. Amend section 6.302-6 by removing from paragraph (a)(1) “41 U.S.C. 253(c)(6)” and adding “41 U.S.C. 3304(a)(6)” in its place.

6.302-7 [Amended]

48. Amend section 6.302-7 by removing from paragraph (a)(1) “41 U.S.C. 253(c)(7)” and adding “41 U.S.C. 3304(a)(7)” in its place.

6.304 [Amended]

49. Amend section 6.304 by removing from paragraph (a)(2) “by the competition advocate” and adding “by the advocate for competition”; and by removing from paragraph (a)(4) “the OFPP Act (41 U.S.C. 414(3))” and adding “41 U.S.C. 1702(c)” in its place.

6.305 [Amended]

50. Amend section 6.305 by removing from paragraph (a) “41 U.S.C. 253(j).” and adding “41 U.S.C. 3304(f).” in its place.

51. Amend subpart 6.5 by revising the heading as set forth below:

SUBPART 6.5—ADVOCATES FOR COMPETITION

52. Amend section 6.501 by revising the introductory paragraph to read as follows:

6.501 Requirement.

As required by 41 U.S.C. 1705, the head of each executive agency shall designate an advocate for competition for the agency and for each procuring activity of the agency. The advocates for competition shall—

6.502 [Amended]

53. Amend section 6.502 by removing from paragraphs (a) and (b) “competition advocates” and adding “advocates for competition” in their places.

PART 7—ACQUISTION PLANNING
7.102 [Amended]

54. Amend section 7.102 by removing from paragraph (a)(1) “41 U.S.C. 251,et seq.” and adding “41 U.S.C. 3307” in its place; and removing from paragraph (a)(2) “10 U.S.C. 2301(a)(5) and 41 U.S.C. 253a(a)(1)” and adding “10 U.S.C. 2305(a)(1)(A) and 41 U.S.C. 3306(a)(1)” in its place.

7.103 [Amended]

55. Amend section 7.103 by—

a. Removing from paragraph (a) “41 U.S.C. 253a(a)(1))” and adding “10 U.S.C. 2305(a)(1)(A) and 41 U.S.C. 3306(a)(1)” in its place;

b. Removing from paragraph (b) “41 U.S.C. 251,et seq.” and adding “41 U.S.C 3307” in its place; and

c. Removing from paragraph (c) “41 U.S.C. 253a(a)(1)” and adding “41 U.S.C. 3306(a)(1)” in its place.

7.104 [Amended]

56. Amend section 7.104 by removing from paragraph (c) “competition advocate” and adding “advocate for competition” in its place.

7.108 [Amended]

57. Amend section 7.108 by removing from the introductory paragraph “section 1428 of Public Law 108-136” and adding “41 U.S.C. 3306(f)” in its place.

7.202 [Amended]

58. Amend section 7.202 by removing from paragraph (a) “10 U.S.C. 2384(a) and 41 U.S.C. 253f” and adding “10 U.S.C. 2384a and 41 U.S.C. 3310” in its place.

PART 8—REQUIRED SOURCES OF SUPPLIES AND SERVICES
8.401 [Amended]

59. Amend section 8.401 in the definition “Multiple Award Schedule (MAS)” by removing “Title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251,et seq.) and Title” and adding “41 U.S.C. 152(3), Competitive Procedures, and” in its place.

8.403 [Amended]

60. Amend section 8.403 by removing from the introductory text of paragraph (c) “Public Law 108-136” and adding “Public Law 108-136 (40 U.S.C. 1103 note)” in its place.

8.405-3 [Amended]

61. Amend section 8.405-3 by removing from paragraph (e)(3) “competition advocate” and adding “advocate for competition” in its place.

8.405-6 [Amended]

62. Amend section 8.405-6 by removing from paragraph (d)(2) “competition advocate” and adding “advocate for competition” in its place.

8.602 [Amended]

63. Amend section 8.602 by removing from the introductory text of paragraph (a) “(Pub. L. 108-447)” and adding “(Pub. L. 108-447) (18 U.S.C. 4124 note)” in its place.

64. Amend section 8.603 by revising the introductory text of paragraph (a); and removing from paragraph (a)(1) “(41 U.S.C. 48)” and adding “(41 U.S.C. 8504)” in its place.

The revised text reads as follows:

8.603 Purchase priorities.

FPI and nonprofit agencies participating in the AbilityOne Program under 41 U.S.C. chapter 85, Committee for Purchase from People Who Are Blind or Severely Disabled (see Subpart 8.7), may produce identical supplies or services. When this occurs, ordering offices shall purchase supplies and services in the following priorities:

65. Revise section 8.700 to read as follows:

8.700 Scope of subpart.

This subpart prescribes the policies and procedures for implementing—

(a) 41 U.S.C. chapter 85, Committee for Purchase from People Who Are Blind or Severely Disabled; and

(b) The rules of the Committee Purchase from People Who Are Blind or Severely Disabled (41 CFR Chapter 51), which implements the AbilityOne program.

8.701 [Amended]

66. Amend section 8.701 by—

a. Removing from the definition “Procurment List” “the Javits-Wagner-O'Day Act” and adding “41 U.S.C. chapter 85” in its place; and

b. Removing from the definition “Nonprofit agency serving people who are blind,” the words “the Act” and adding “41 U.S.C. chapter 85” in its place.

8.702 [Amended]

67. Amend section 8.702 by removing from paragraph (c) “the Javits-Wagner-O'Day Act” and adding “41 U.S.C. chapter 85” in its place.

8.704 [Amended]

68. Amend section 8.704 by removing from the introductory text of paragraph (a) “The Javits-Wagner-O'Day Act” and adding “41. U.S.C. chapter 85” in its place; and removing from paragraph (a)(1)(i) “(41 U.S.C. 48)” and adding “(41 U.S.C. 8504)” in its place.

8.1104 [Amended]

69. Amend section 8.1104 by removing from paragraph (e)(3) “Walsh-Healey Public Contracts Act” and adding “Contracts for Materials, Supplies. Articles, and Equipment Exceeding $15,000” in its place.

PART 9—CONTRACTOR QUALIFICATIONS
9.102 [Amended]

70. Amend section 9.102 by removing from paragraph (b)(3) “the blind or other severely handicapped” and adding “people who are blind or severely disabled” in its place.

71. Amend section 9.107 by revising the section heading; and removing from paragraph (a) “41. U.S.C. 46-48c” and adding “41 U.S.C. chapter 85” in its place. The revised text reads as follows:

9.107 Surveys of nonprofit agencies participating in the AbilityOne Program.
9.200 [Amended]

72. Amend section 9.200 by removing “41 U.S.C. 253(e)” and adding “41 U.S.C. 3311” in its place.

9.202 [Amended]

73. Amend section 9.202 by removing from paragraph (b) “competition advocate” and adding ” advocate for competition” in its place (twice).

9.402 [Amended]

74. Amend section 9.402 by removing from paragraph (d) “(Pub. L. 110-417)” and adding “(Pub. L. 110-417) (31 U.S.C. 6101 note)” in its place.

75. Amend section 9.406-2 by revising the introductory text of paragraph (b)(1)(ii) to read as follows:

9.406-2 Causes for debarment.

(b) * * *

(ii) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as indicated by—

9.406-4 [Amended]

76. Amend section 9.406-4 by removing from paragraph (a)(1)(i) “the Drug-Free Workplace Act of 1988” and adding “41 U.S.C. chapter 81, Drug Free Workplace” in its place.

77. Amend section 9.407-2 by revising the introductory text of paragraph (a)(4) to read as follows:

9.407-2 Causes for suspension.

(a) * * *

(4) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as indicated by—

PART 10—MARKET RESEARCH
10.000 [Amended]

78. Amend section 10.000 by removing “41 U.S.C. 253a(a)(1), 41 U.S.C. 264b” and adding “41 U.S.C. 3306(a)(1), 41 U.S.C. 3307” in its place.

PART 11—DESCRIBING AGENCY NEEDS
11.002 [Amended]

79. Amend section 11.002 by removing from the introductory text of paragraph (a) “41 U.S.C. 253a(a), and 41 U.S.C. 264b” and adding “41 U.S.C. 3306(a), and 41 U.S.C. 3307” in its place.

11.103 [Amended]

80. Amend section 11.103 by removing from the introductory text of paragraph (a) “Section 8002(c) of Pub. L. 103-355” and adding “41 U.S.C. 3307(e)” in its place.

11.500 [Amended]

81. Amend section 11.500 by removing “Act” and adding “statute” in its place.

PART 12—ACQUISITION OF COMMERCIAL ITEMS
12.000 [Amended]

82. Amend section 12.000 by removing “Title VIII of the Federal Acquisition Streamlining Act of 1994 (Public Law 103-355)” and adding “41 U.S.C. 1906, 1907, and 3307 and 10 U.S.C. 2375-2377” in its place.

12.102 [Amended]

83. Amend section 12.102 by removing from the introductory text of paragraph (g)(1) “section 1431 of the National Defense Authorization Act for Fiscal Year 2004 (Public law 108-136) (41 U.S.C. 437)” and adding “41 U.S.C. 2310” in its place.

84. Revise section 12.103 to read as follows:

12.103 Commercially available of-the-shelf (COTS) items.

Commercially available off-the-shelf (COTS) items are defined in 2.101. Unless indicated otherwise, all of the policies that apply to commercial items also apply to COTS items. Section 12.505 lists the laws that are not applicable to COTS items (in addition to 12.503 and 12.504); the components test of the Buy American statute, and the two recovered materials certifications in Subpart 23.4, do not apply to COTS items.

85. Revise section 12.201 to read as follows:

12.201 General.

This subpart identifies special requirements for the acquisition of commercial items intended to more closely resemble those customarily used in the commercial marketplace, as well as other considerations necessary for proper planning, solicitation, evaluation, and award of contracts for commercial items.

12.301 [Amended]

86. Amend section 12.301 by removing from the introductory text of paragraph (a) “Section 8002 of Public Law 103-355 (41 U.S.C. 264, note)” and adding “41 U.S.C. 3307” in its place.

12.404 [Amended]

87. Amend section 12.404 by removing from the introductory text of paragraph (b) “The Federal Acquisition Streamlining Act of 1994 (41 U.S.C. 264 note)” and adding “41 U.S.C. 3307(e)(5)(B)” in its place.

12.500 [Amended]

88. Amend section 12.500 by removing from the introductory text of paragraph (a) “sections 34 and 35 of the Office of Federal Procurement Policy Act (41 U.S.C. 430 and 431)” and adding “41 U.S.C. 1906 and 1907” in its place.

12.502 [Amended]

89. Amend section 12.502 by removing from paragraph (b) “and Commercial Components”.

90. Amend section 12.503 by—

a. Revising paragraphs (a)(1) through (a)(4), (a)(7), (a)(8), (b)(1), and (b)(2);

b. Removing from paragraph (c)(1) “41 U.S.C. 253g” and adding “41 U.S.C. 4704” in its place;

c. Revising paragraph (c)(2); and

d. Removing from paragraph (c)(3) “41 U.S.C. 422” and adding “41 U.S.C. chapter 15” in its place.

The revised text reads as follows:

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

(a) * * *

(1) 41 U.S.C. chapter 65, Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000 (see subpart 22.6).

(2) 41 U.S.C. 3901(b) and 10 U.S.C. 2306(b), Contingent Fees (see 3.404).

(3) 41 U.S.C. 1708(e)(3), Minimum Response Time for Offers (see 5.203).

(4) 41 U.S.C. chapter 81, Drug-Free Workplace (see 23.501).

(7) Section 806(a)(3) of Pub. L. 102-190, as amended by Sections 2091 and 8105 of Pub. L. 103-355 (10 U.S.C. 2302 note), Payment Protections for Subcontractors and Suppliers (see 28.106-6).

(8) 41 U.S.C. 4706(d)(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).

(b) * * *

(1) 40 U.S.C. chapter 37, Requirement for a certificate and clause under the Contract Work Hours and Safety Standards statute (see 22.305).

(2) 41 U.S.C. 8703 and 8704, Requirement for a clause and certain other requirements related to kickbacks (see 3.502).

(c) * * *

(2) 41 U.S.C. chapter 35, Truthful Cost or Pricing Data, and 10 U.S.C. 2306a, Truth in Negotiations (see 15.403).

91. Amend section 12.504 by—

a. Revising paragraph (a)(4) through (a)(6);

b. Removing from paragraph (a)(7) “41 U.S.C. 254d(c)” and adding “41 U.S.C. 1708(e)(3)” in its place;

c. Revising paragraphs (a)(8) through (a)(10);

d. Removing from paragraph (a)(13) “Pub. L. 103-355” and adding “Pub. L. 103-355 (10 U.S.C. 2302 note)” in its place;

e. Removing from paragraph (b) “Act, 40 U.S.C. 3701,et seq.” and adding “statute, 40 U.S.C. chapter 37” in its place; and

f. Revising paragraphs (c)(1) through (c)(3).

The revised text reads as follows:

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

(a) * * *

(4) 41 U.S.C. 6505, Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000 (see Subpart 22.6).

(5) 41 U.S.C. 4703, Validation of Property Data restrictions (see subpart 27.4).

(6) 41 U.S.C. 3901(b) and 10 U.S.C. 2306(b), Contingent Fees (see subpart 3.4).

(8) 41 U.S.C. 1708(e)(3), Minimum Response Time for Offers (see subpart 5.2).

(9) 41 U.S.C. 2302, Rights in Technical Data (see subpart 27.4)

(10) 41 U.S.C. chapter 81, Drug-Free Workplace (see subpart 23.5).

(c) * * *

(1) 41 U.S.C. 4704 and 10 U.S.C. 2402, Prohibition on L