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Four FAC 2005-48 Final Rules Update the FAR

The Civilian Agency Acquisition and Defense Acquisition Regulations Councils have published Federal Acquisition Circular 2005-48, which contains four final rules amending the Federal Acquisition Regulation. In order of appearance, the rules address the following subjects: Item I, Repeal of the Small Business Competitiveness Demonstration Program (FAR Case 2011-005); Item II, Personal Identity Verification of Contractor Personnel (FAR Case 2009-027); Item III, Terminating Contracts (FAR Case 2009-031); and Item IV, Payrolls and Basic Records (FAR Case 2009-018). The first three rules go into effect on January 31, 2011, while the fourth rule carries a December 30, 2010, effective date. This FAC also contains a Small Entity Compliance Guide. For the text of FAC 2005-48, see 70,002.128.

SBCDP Repeal

The final rule associated with FAR Case 2011-005 removes coverage of the Small Business Competitiveness Demonstration Program from the FAR to meet the requirements of Section 1335 of the Small Business Jobs Act of 2010 (PL 111-240). Section 1335 amended the Business Opportunity Development Reform Act of 1988 (PL 100-656) by striking Title VII (15 USC 644 note), which addressed the SBCDP. The amendments remove the policy, procedures, provisions, clauses, and the information collection and recordkeeping requirements associated with the SBCDP. Specifically, this final rule deletes FAR Subpart 19.10 and removes the corresponding clauses at FAR 52.219-19, Small Business Concern Representation for the Small Business Competitiveness Demonstration Program; FAR 52.219-20, Notice of Emerging Small Business Set-Aside; and FAR 52.219-21, Small Business Size Representation for Targeted Industry Categories under the Small Business Competitiveness Demonstration Program. The rule also updates forms at FAR 53.301-1447, FAR 53.301-1449, and FAR 53.302-347 by deleting any references to the program. In addition, the rule removes mention of the program, and makes technical changes, at the following regulations: FAR 1.106, FAR 4.603, FAR 4.606, FAR 4.1202, FAR 12.303, FAR 12.603, FAR 19.304, FAR 19.502-2, FAR 22.1006, FAR 52.204-8, FAR 52.212-3, FAR 53.212 through FAR 53.214, and FAR 53.236-1.

Personal Identity Verification

The FAR Case 2009-027 final rule amends the FAR to reinforce the requirement of collecting from contractors all forms of government-provided identification once they are no longer needed to support a contract. The rule, which amends FAR 4.1301 and the clause at FAR 52.204-9, addresses the problem of inadequate accounting of common access cards after contract performance or completion. The rule inserts two new paragraphs at FAR 4.1301 requiring agencies to ensure contractors account for all forms of government-provided identification and to return the identification when no longer necessary for contract support. Though the FAR Councils did not receive any comments on the proposed rule (70,006.241), the final rule makes some changes to clarify the applicability of requirements for personal identity verification cards and to clarify the flow down requirement for subcontractors in FAR 52.204-9. Pursuant to FAR 4.1303(d)(2), a contracting officer may delay final payment under a contract if the contractor fails to comply with its PIV obligations.

Termination Requirements

Another final rule, FAR Case 2009-031, amends the FAR to clarify the applicability of procedures regarding the termination of contracts for the acquisition of commercial items. Specifically, the rule amends FAR 49.002 and FAR 49.501 to state that FAR Part 49, Termination of Contracts, does not apply to the acquisition of commercial items under FAR Part 12 procedures. The rule makes minor changes from the proposed rule (70,006.240) to clarify and simplify this mandate.

Payrolls and Records

The FAR Case 2009-018 rule finalizes, with a minor change, an interim rule issued with FAC 2005-42, which amended the FAR to implement a Department of Labor final rule regarding the submission of payroll data, Protecting the Privacy of Workers: Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (73 FR 77504). The interim rule revised FAR 52.222-8, Payrolls and Basic Records, and the form at FAR 53.303-WH-347, to delete the requirement for submission of full social security numbers and home addresses of individual workers on weekly payroll transmittals as required on covered construction contracts. However, the rule required contractors and subcontractors to maintain the full social security number and current address of each covered worker and provide the information on request to the contracting officer, the contractor, or the DOL Wage and Hour Division for purposes of an investigation or audit of compliance with prevailing wage requirements. The rule recognized DOL's finding that complete social security numbers and home addresses for individual workers is information personal to the worker and that any unnecessary disclosure of this information creates exposure to identity theft and invasion of privacy. The final rule adds an updated DOL form WH-347, which is found at FAR 53.303-WH-347.




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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