[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-28052]

Vol. 78

Monday,

No. 227

November 25, 2013

Part III

Department of Defense

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General Services Administration

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National Aeronautics and Space Administration

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48 CFR Chapter 1, et al.

Federal Acquisition Regulations; Final Rules

Federal Register / Vol. 78 , No. 227 / Monday, November 25, 2013 / Rules and Regulations

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket No. FAR 2013-0076, Sequence No. 7]

Federal Acquisition Regulation; Federal Acquisition Circular 2005-71; Introduction

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

ACTION: Summary presentation of final rules.

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SUMMARY: This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2005-71. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the Internet at http://www.regulations.gov.

DATES: For effective dates and comment dates see separate documents, which follow.

FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the table below in relation to the FAR case. Please cite FAC 2005-71 and the specific FAR case numbers. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755.

Rules Listed in FAC 2005-71

Item

Subject

FAR Case

Analyst

I

Accelerated Payments to Small Business Subcontractors.

2012-031

Chambers.

II

New Designated Country--Croatia.

2013-019

Davis.

III

Technical Amendments

   

SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005-71 amends the FAR as specified below:

Item I--Accelerated Payments to Small Business Subcontractors (FAR Case 2012-031)

This final rule amends the FAR to add a new clause, Providing Accelerated Payments to Small Business Subcontractors, as part of the implementation of OMB Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors (as extended by OMB Memorandum M-13-15, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors). This new clause requires the prime contractor, upon receipt of accelerated payments from the Government, to make accelerated payments to small business subcontractors, to the maximum extent practicable, after receipt of a proper invoice and all proper documentation from small business subcontractors. This clause will be inserted into all new solicitations issued after the effective date of this rule and resultant contracts, including solicitations and contracts for the acquisition of commercial items. This rule does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions. Small businesses benefit from this clause in that they should be paid more expeditiously by their prime contractor, which should improve small businesses overall cash flow.

Item II--New Designated Country--Croatia (FAR Case 2013-019) This final rule amends the FAR to add Croatia as a new designated country under the World Trade Organization Government Procurement Agreement (WTO GPA). Croatia joined the European Union on July 1, 2013, which is a party to the WTO GPA.

Therefore, this rule adds Croatia to the list of WTO GPA countries wherever it appears in the FAR, whether as a separate definition, part of the definition of ``designated country,'' the definition of

``Recovery Act designated country,'' or as part of the list of countries exempt from the prohibition of acquisition of products produced by forced or indentured child labor. As a member of the European Union, Croatia also is a party to the Agreement on Trade in Civil Aircraft.

This final rule will not have a significant economic impact on small entities.

Item III--Technical Amendments

Editorial changes are made at FAR 31.205-6, 52.202-1, 52.212-3, 52.212-5, and 52.213-4.

Dated: November 18, 2013.

William Clark,

Acting Director, Office of Government-Wide Acquisition Policy, Office of Acquisition Policy, Office of Government-Wide Policy.

Federal Acquisition Circular (FAC) 2005-71 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.

Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-71 FAC 2005-71 is effective November 25, 2013 except for item I, which is effective December 26, 2013.

Dated: November 14, 2013.

Richard Ginman,

Director, Defense Procurement and Acquisition Policy.

Dated: November 18, 2013.

Houston Taylor,

Acting Senior Procurement Executive/Deputy CAO, Office of Acquisition Policy, U.S. General Services Administration.

Dated: November 15, 2013.

William P. McNally,

Assistant Administrator for Procurement, National Aeronautics and Space Administration.

[FR Doc. 2013-28052 Filed 11-22-13; 8:45 am]

BILLING CODE 6820-EP-P

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[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-28053]

Federal Register / Vol. 78 , No. 227 / Monday, November 25, 2013 / Rules and Regulations

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 12, 32, and 52

[FAC 2005-71; FAR Case 2012-031; Item I; Docket No. 2012-0031, Sequence No. 1]

RIN 9000-AM37

Federal Acquisition Regulation; Accelerated Payments to Small Business Subcontractors

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement the policy provided by Office of Management and Budget (OMB) Memoranda M-12-16, dated July 11, 2012, and M-13-15, dated July 11, 2013, by incorporating a new clause to provide accelerated payments to small business subcontractors.

DATES: Effective: December 26, 2013.

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 FAC 2005-71, FAR Case 2012-031.

SUPPLEMENTARY INFORMATION:

I. Background

DoD, GSA, and NASA published a proposed rule in the Federal Register at 77 FR 75089 on December 19, 2012, to implement OMB Memorandum M-12-16 that will provide for the acceleration of payments to small business subcontractors. OMB released Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors, on July 11, 2012. This policy memorandum outlined the steps agencies shall take to ensure that prime contractors pay their small business subcontractors as promptly as possible. OMB released Memorandum M-13-15, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors, on July 11, 2013. This policy memorandum extended the OMB Memorandum M-12-16's expiration date by one year to July 11, 2014.

Seven respondents submitted comments on the proposed rule.

II. Discussion and Analysis

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:

A. Summary of Significant Changes

As part of the implementation of OMB Memoranda M-12-16 and M-13-15, the FAR is amended to add a new FAR clause, Providing Accelerated Payments to Small Business Subcontractors. This new clause requires the prime contractor, upon receipt of accelerated payment from the Government, to make accelerated payments to small business subcontractors, to the maximum extent practicable, after receipt of a proper invoice and all proper documentation from small business subcontractors. This clause will be inserted into all new solicitations issued after the effective date of this rule and resultant contracts, including solicitations and contracts for the acquisition of commercial items. This rule does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

B. Analysis of Public Comments

1. Support for the Rule

Comment: Two respondents expressed support for the rule.

Response: The Councils note the public support for this rule.

2. Clause Prescription

Comment: One respondent recommended adding a paragraph to FAR 52.212-4 to incorporate the new clause in lieu of prescribing the clause in FAR 12.301(d)(4).

Response: The unique nature of the temporary guidance issued in the OMB Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors, (and as extended by OMB Memorandum M-13-15) required a new independent clause 52.232-40; thus, a distinct prescription in FAR 12.301(d)(4) is intentionally created.

3. Privity of Contract

Comment: One respondent recommended that the Government should refrain from creating a privity of contract between the Government and the subcontractors. Respondent asserts that this may lead to a cause of action for the subcontractor against the Government if the prime contractor defaults on these requirements.

Response: Directing the prime contractor, upon receipt of accelerated payment from the Government, to accelerate payments to subcontractors does not create privity of contract between the Government and the subcontractors.

4. Compliance With the Rule

Comment: One respondent expressed concern that the rule did not identify a responsible Government party for addressing the prime's failure to accelerate payments to subcontractors. The respondent also stated that the rule does not provide penalties for the prime's failure to accelerate payments. Another respondent stated that the proposed rule lacks clarity as to how the Government will audit contractors to ensure compliance, and to what performance standards prime contractors will be held.

Response: The rule does not create any new remedies for subcontractor payment issues. Subcontractors would utilize existing remedies for non-payment similar, but not limited, to FAR 32.112. If, upon receipt of accelerated payment from the Government, the prime fails to accelerate payments to the maximum extent practicable, the Government may discontinue accelerated payments to the prime contractor. The Government may review prime contractor payments and procedures to ensure the required accelerated payments to small business subcontractors are made to the maximum extent practicable. This flexibility is intended to accommodate varying prime contractor capabilities to make accelerated payments.

5. Definition

Comment: A number of respondents stated that the rule is not specific as to what constitutes ``accelerated payments to the maximum extent practicable''. Two respondents took issue with the lack of specificity, while another supported the flexibility offered by the language. Two respondents questioned what is the definition of accelerated payments. One respondent recommended adding to the definition of accelerated payments that the prime contractor would not be required to accelerate payments equal to or less than the accelerated payment cycle received from the Government.

Response: The flexibility in the clause language is intended to accommodate varying contractor capabilities to make accelerated payments.

6. Pre-Existing Regulatory Coverage

Comment: One respondent stated that the additional language in this FAR rule is unnecessary. The respondent finds FAR 52.232-1 sufficient to accelerate payments to small business subcontractors.

Response: FAR 52.232-1 does not address accelerated payments to prime contractors or subcontractors; it addresses general conditions for payments to prime contractors on certain fixed-price contracts.

7. Administrative Burden

Comment: One respondent stated the rule will result in increased administrative costs, and an evaluation of the existing payment environment should have preceded this rule making. Another respondent recommended adding the following language to the rule, ``The proposed rule is not intended to impose any additional reporting, recordkeeping, or other information collection requirements.''

Response: The respondent did not specify what administrative costs would be increased. However, this rule is established to ensure that, upon receipt of accelerated payment from the Government, the prime contractors shall accelerate payments to small business subcontractors to the maximum extent practicable. The Government gave consideration to relevant payment environment factors prior to issuance of this rule. The addition of the recommended language is unnecessary because this rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act.

8. Commercial Practices

Comment: One respondent opined that Government prime contractors have subcontractor payment terms and payment timelines that are much more subcontractor friendly than those found in the commercial marketplace.

Response: The Councils appreciate those prime contractors who pay their subcontractors on a timely basis, and is issuing this rule to require prime contractors, upon receipt of accelerated payment from the Government, to pay their small business subcontractors in an accelerated manner to the maximum extent practicable.

9. Rule Applicability

Comment: One respondent stated that the rule forces prime contractors to accelerate payments to subcontractors on non-government programs and therefore equitable price adjustments should be expected.

Response: The rule applies to those prime contractors for which the Government provides accelerated payment. It requires prime contractors, upon receipt of accelerated payment from the Government, to accelerate payments to their small business subcontractors under Government prime contracts that include the clause; it does not require prime contractors to accelerate payments to other than their small business subcontractors on Government prime contracts.

Comment: Another respondent recommended applying this requirement to current contracts as well as existing solicitations and limiting the application of this rule to first tier subcontractors.

Response: In accordance with FAR 1.108(d), contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.

The rule is not limited to first-tier subcontractors, because that is inconsistent with the OMB memo that this rule implements, and would reduce the number of small entities that may benefit from this rule.10. Regulatory Rulemaking Process

Comment: One respondent encouraged the Government to delay the rule and hold a series of public meetings to gain a better understanding of the challenges the rule would create.

Response: The public was provided an opportunity to comment through the standard rule-making process of publication of the proposed rule in the Federal Register. All comments received were considered in the formation of this final rule.

11. Implementation

Comment: One respondent noted the current budgetary crisis and recommended a delay in the implementation of this rule. Another respondent recommended the rule emphasize that prime contractors be required to make accelerated payments only if the Government accelerates payments to the prime contractor.

Response: If the Government does not accelerate payment to a prime contractor, that prime contractor is under no obligation to accelerate payments to its small business subcontractors. While the clause requires the prime contractor to accelerate payments to its small business subcontractors under certain conditions, it does not prevent the prime contractor from paying any of its subcontractors on an accelerated basis, if it elects to do so, without regard to the receipt of accelerated payments from the Government.

12. Accelerated Payments

Comment: One respondent recommended guidance that states that Government payments will not be considered accelerated if they are made beyond the Prompt Payment Act thresholds for the incurrence of interest.

Response: Payments under which prompt payment interest has been applied are not Government accelerated payments.

III. Additional Rulemaking

The Councils are considering the need for further FAR guidance relative to facilitating accelerated payments to small business subcontractors. This additional guidance could take the form of additional FAR revisions, or new FAR provisions and clauses, if appropriate. The Councils may decide to publish a Request for Information in the near future to consider its options to address accelerated payments to small business subcontractors. This will support the OMB Memorandum M-13-15, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors, requirement for the Councils to solicit public input on strategies that might be used over the longer term to help maintain effective cash flow and prompt payment to small business subcontractors.

IV. Executive Orders 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 a significant regulatory action and, therefore, was 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.

V. Regulatory Flexibility Act

DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

Although it may have a positive impact on small business subcontractors, DoD, GSA, and NASA do not expect this 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 this rule implements the temporary policy provided by OMB Policy Memoranda M-12-16, Providing Prompt Payment to Small Business Subcontractors, dated July 11, 2012 and M-13-15, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors, on July 11, 2013, which are designed to accelerate payment from Federal contractors to their small business subcontractors. The rule imposes no reporting, recordkeeping, or other information collection requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules, and there are no known significant alternatives to the rule.

This final rule adds a FAR clause that will provide for accelerated payments from the prime contractor to its small business subcontractors when the prime contractor receives an accelerated payment from the Government thus implementing this OMB policy. This rule requires prime contractors, upon receipt of accelerated payments from the Government, to make accelerated payments to their small business subcontractors, improving small business cash flow overall.

No comments were filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the rule and no changes were made to the rule.

Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.

VI. Paperwork Reduction Act

The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 12, 32, and 52

Government procurement.

Dated: November 18, 2013.

William Clark,

Acting Director, Office of Government-Wide Acquisition Policy, Office of Acquisition Policy, Office of Government-Wide Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 12, 32, and 52 as set forth below:

1. The authority citation for 48 CFR parts 12, 32, and 52 continues to read as follows:

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

PART 12--ACQUISITION OF COMMERCIAL ITEMS

2. Amend section 12.301 by adding paragraph (d)(4) to read as follows:

12.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

* * * * *

(d) * * *

(4) Insert the clause at 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, as prescribed in 32.009-2.

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PART 32--CONTRACT FINANCING

32.002 [Amended]

3. Amend section 32.002 by removing from paragraph (a)(1) ``32.005'' and adding ``32.009'' in its place.

4. Add section 32.009 to read as follows:

32.009 Providing accelerated payments to small business subcontractors.

32.009-1 General.

Pursuant to the policy provided by OMB Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors (and as extended by OMB Memorandum M-13-15, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors), agencies shall take measures to ensure that prime contractors pay small business subcontractors on an accelerated timetable to the maximum extent practicable, and upon receipt of accelerated payments from the Government. This acceleration does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

32.009-2 Contract clause.

Insert clause 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, in all solicitations and contracts.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

5. Amend section 52.213-4 by--

a. Revising the date of the clause;

b. Redesignating paragraphs (a)(2)(vi) through (a)(2)(viii) as paragraphs (a)(2)(vii) through (a)(2)(ix), respectively;

c. Adding a new paragraph (a)(2)(vi).

The revision and addition read as follows:

52.213-4 Terms and Conditions-Simplified Acquisitions (Other Than Commercial Items).

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Terms and Conditions--Simplified Acquisitions (Other than Commercial items) (Dec 2013)

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(a) * * *

(2) * * *

(vi) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (Dec 2013)

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6. Add section 52.232-40 to read as follows:

52.232-40 Providing Accelerated Payments to Small Business Subcontractors.

As prescribed in 32.009-2, insert the following clause:

Providing Accelerated Payments to Small Business Subcontractors (Dec 2013)

(a) Upon receipt of accelerated payments from the Government, the Contractor shall make accelerated payments to its small business subcontractors under this contract, to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract, after receipt of a proper invoice and all other required documentation from the small business subcontractor.

(b) The acceleration of payments under this clause does not provide any new rights under the Prompt Payment Act.

(c) Include the substance of this clause, including this paragraph (c), in all subcontracts with small business concerns, including subcontracts with small business concerns for the acquisition of commercial items.

(End of clause)

7. Amend section 52.244-6 by--

a. Revising the date of the clause;

b. Redesignating paragraph (c)(1)(x) as paragraph (c)(1)(xi); and

c. Adding a new paragraph (c)(1)(x).

The revision and addition read as follows:

52.244-6 Subcontracts for Commercial Items.

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Subcontracts for Commercial Items (Dec 2013)

* * * * *

(c)(1) * * *

(x) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (Dec 2013), if flow down is required in accordance with paragraph (c) of FAR clause 52.232-40.

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[FR Doc. 2013-28053 Filed 11-22-13; 8:45 am]

BILLING CODE 6820-EP-P

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[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-28054]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22, 25, and 52

[FAC 2005-71; FAR Case 2013-019; Item II; Docket No. 2013-0019, Sequence No. 1]

RIN 9000-AM66

Federal Acquisition Regulation; New Designated Country--Croatia

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to add Croatia as a new designated country under the World Trade Organization Government Procurement Agreement (WTO GPA). On July 1, 2013, Croatia joined the European Union, which is a party to the WTO GPA.

DATES: Effective: November 25, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement Analyst, at 202-219-0202 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-71, FAR Case 2013-019.

SUPPLEMENTARY INFORMATION:

I. Background

The European Union is a party to the WTO GPA and has assumed rights and obligations under the WTO GPA on behalf of its member states. On July 1, 2013, Croatia became a member of the European Union. Therefore, the European Union has committed to assume rights and obligations on behalf of Croatia under the WTO GPA. On June 27, 2013, the WTO Committee on Government Procurement approved the application of the WTO GPA to Croatia. The United States, which is also a party to the WTO GPA, has agreed to waive discriminatory purchasing requirements for eligible products and supplies of Croatia (see 78 FR 60368, dated October 1, 2013).

Therefore, this rule adds Croatia to the list of WTO GPA countries wherever it appears in the FAR, whether as a separate definition, as part of the definition of ``designated country'' or ``Recovery Act designated country'', or as part of the list of countries exempt from the prohibition of acquisition of products produced by forced or indentured child labor (FAR 22.1503, 25.003, 52.222-19, 52.225-5, 52.225-11, and 52.225-23).

Likewise, as a member of the European Union, Croatia also is a party to the Agreement on Trade in Civil Aircraft (FAR 25.407 and 52.225-7).

Conforming changes were required to FAR 52.212-5, Contract Terms and Conditions Required to Implement Statute or Executive Orders--Commercial Items, and 52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items).

II. Publication of This Final Rule for Public Comment Is Not Required by Statute

``Publication of proposed regulations,'' 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is just updating the lists of designated countries and countries that are party to the Agreement on Trade in Civil Aircraft, in order to reflect the fact that Croatia is now a member of the European Union.

III. Executive Orders 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 Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant FAR revision and 41 U.S.C. 1707 does not require publication for public comment.

V. Paperwork Reduction Act

The Paperwork Reduction Act does apply, because the rule affects the response of an offeror that is offering a product of Croatia to the information collection requirements in the provisions at FAR 52.212-3(g)(5), 52.225-6, 52.225-11, and 52.225-23. The offeror no longer needs to list a product from Croatia under ``other end products'', because Croatia is now a designated country. These information collection requirements are currently approved under OMB Control Numbers 9000-0136: Commercial Item Acquisitions, 9000-0025: Buy American Act, Trade Agreements Act Certificate, and 9000-0141: Buy American--Construction, respectively. The impact, however, is negligible.

List of Subjects in 48 CFR Parts 22, 25, and 52

Government procurement.

Dated: November 18, 2013.

William Clark,

Acting Director, Office of Government-Wide Acquisition Policy, Office of Acquisition Policy, Office of Government-Wide Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 22, 25, and 52 as set forth below:

1. The authority citation for 48 CFR parts 22, 25, and 52 continues to read as follows:

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

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

22.1503 [Amended]

2. Amend section 22.1503 by removing from paragraph (b)(4) ``Bulgaria, Cyprus'' and adding ``Bulgaria, Croatia, Cyprus'' in its place.

PART 25--FOREIGN ACQUISITION

25.003 [Amended]

3. Amend section 25.003 by--

a. Removing from the definition ``Designated country'', in paragraph (1), ``Canada, Cyprus'' and adding, ``Canada, Croatia, Cyprus'' in its place; and

b. Removing from the definition ``World Trade Organization Government Procurement Agreement (WTO GPA) country'', ``Canada, Cyprus'' and adding ``Canada, Croatia, Cyprus'' in its place.

Subpart 25.4--Trade Agreements

25.407 [Amended]

4. Amend section 25.407 by removing ``Canada, Cyprus'' and adding ``Canada, Croatia, Cyprus'' in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

5. Amend section 52.212-5 by revising the date of the clause and paragraphs (b)(27) and (b)(41) to read as follows:

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

* * * * *

Contract Terms and Conditions Required To Implement Statutes or Executive Orders--Commercial Items (NOV 2013)

* * * * *

(b) * * *

--------(27) 52.222-19, Child Labor--Cooperation with Authorities and Remedies (NOV 2013) (E.O. 13126).

* * * * *

--------(41) 52.225-5, Trade Agreements (NOV 2013) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

* * * * *

6. Amend section 52.213-4 by revising the date of the clause and paragraph (b)(1)(ii) to read as follows:

52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items) (NOV 2013)

* * * * *

(b) * * *

(1) * * *

(ii) 52.222-19, Child Labor--Cooperation with Authorities and Remedies (NOV 2013) (E.O. 13126). (Applies to contracts for supplies exceeding the micro-purchase threshold.)

* * * * *

7. Amend section 52.222-19 by--

a. Revising the date of the clause; and

b. Removing from paragraph (a)(4) ``Bulgaria, Cyprus'' and adding ``Bulgaria, Croatia, Cyprus'' in its place.

The revision reads as follows:

52.222-19 Child Labor--Cooperation with Authorities and Remedies.

* * * * *

Child Labor--Cooperation With Authorities and Remedies (NOV 2013)

* * * * *

8. Amend section 52.225-5:

a. By revising the date of the clause; and

b. In paragraph (a), in paragraph (1) of the definition of ``Designated country'', by removing ``Canada, Cyprus'' and adding ``Canada, Croatia, Cyprus'' in its place.

The revisions reads as follows:

52.225-5 Trade Agreements.

* * * * *

Trade Agreements (NOV 2013)

* * * * *

9. Amend section 52.225-7 by--

a. Revising the date of the provision; and

b. Removing from paragraph (b) ``Canada, Cyprus'' and adding ``Canada, Croatia, Cyprus'' in its place.

The revised text reads as follows:

52.225-7 Waiver of Buy American Act for Civil Aircraft and Related Articles.

* * * * *

Waiver of Buy American Act for Civil Aircraft and Related Articles (NOV 2013)

* * * * *

10. Amend section 52.225-11:

a. By revising the date of the clause; and

b. In paragraph (a), in paragraph (1) of the definition of ``Designated country'', by removing ``Canada, Cyprus'' and adding ``Canada, Croatia, Cyprus'' in its place.

The revision reads as follows:

52.225-11 Buy American Act--Construction Materials under Trade Agreements.

* * * * *

Buy American Act--Construction Materials Under Trade Agreements (NOV 2013)

* * * * *

11. Amend section 52.225-23:

a. By revising the date of the clause;

b. In paragraph (a), in paragraph (1) of the definition of ``Designated country'', by removing ``Canada, Cyprus'' and adding ``Canada, Croatia, Cyprus'' in its place; and

c. By removing from paragraph (a), in paragraph (1) of the definition of ``Recovery Act designated country'', ``Canada, Cyprus'' and adding, ``Canada, Croatia, Cyprus'' in its place.

The revision reads as follows:

52.225-23 Required Use of American Iron, Steel, and Manufactured Goods--Buy American Act--Construction Materials Under Trade Agreements.

* * * * *

Required Use of American Iron, Steel, and Manufactured Goods--Buy American Act--Construction Materials Under Trade Agreements (NOV 2013)

* * * * *

[FR Doc. 2013-28054 Filed 11-22-13; 8:45 am]

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[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-28055]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 31 and 52

[FAC 2005-71; Item III; Docket No. 2013-0080; Sequence No. 5]

Federal Acquisition Regulation; Technical Amendments

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

ACTION: Final rule.

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SUMMARY: This document makes amendments to the Federal Acquisition Regulation (FAR) in order to make editorial changes.

DATES: Effective: November 25, 2013.

FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, Washington, DC 20405, 202-501-4755, for information pertaining to status or publication schedules. Please cite FAC 2005-71, Technical Amendments.

SUPPLEMENTARY INFORMATION: In order to update certain elements in 48 CFR parts 31 and 52, this document makes editorial changes to the FAR.

List of Subject in 48 CFR Parts 31 and 52

Government procurement.

Dated: November 18, 2013.

William Clark,

Acting Director, Office of Government-Wide Acquisition Policy, Office of Acquisition Policy, Office of Government-Wide Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 31 and 52 as set forth below:

1. The authority citation for 48 CFR parts 31 and 52 continues to read as follows:

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

PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES

31.205-6 [Amended]

2. Amend section 31.205-6 by removing from paragraph (p)(2)(ii) ``January 1, 1998'' and adding ``January 1, 2012'' in its place, (two times).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Revise section 52.202-1 to read as follows:

52.202-1 Definitions.

As prescribed in 2.201, insert the following clause:

Definitions (Nov 2013)

When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless--

(a) The solicitation, or amended solicitation, provides a different definition;

(b) The contracting parties agree to a different definition;

(c) The part, subpart, or section of the FAR where the provision or clause is prescribed provides a different meaning; or

(d) The word or term is defined in FAR Part 31, for use in the cost principles and procedures.

(End of clause)

4. Amend section 52.212-3 by revising the date of the provision and paragraphs (g)(5) and (h)(3) to read as follows:

52.212-3 Offeror Representations and Certifications--Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (Nov 2013)

* * * * *

(g) * * *

(5) Trade Agreements Certificate. (Applies only if the clause at FAR 52.225-5, Trade Agreements, is included in this solicitation.)

(i) The offeror certifies that each end product, except those listed in paragraph (g)(5)(ii) of this provision, is a U.S.-made or designated country end product, as defined in the clause of this solicitation entitled ``Trade Agreements''.

(ii) The offeror shall list as other end products those end products that are not U.S.-made or designated country end products.

Other End Products:

Line item No. Country of origin

----------------------------------------- ---------------------------

----------------------------------------- ---------------------------

----------------------------------------- ---------------------------

[List as necessary]

(iii) The Government will evaluate offers in accordance with the policies and procedures of FAR Part 25. For line items covered by the WTO GPA, the Government will evaluate offers of U.S.-made or designated country end products without regard to the restrictions of the Buy American Act. The Government will consider for award only offers of U.S.-made or designated country end products unless the Contracting Officer determines that there are no offers for such products or that the offers for such products are insufficient to fulfill the requirements of the solicitation.

(h) * * *

(3) [square] Are, [square] are not presently indicted for, or otherwise criminally or civilly charged by a Government entity with, commission of any of these offenses enumerated in paragraph (h)(2) of this clause; and

* * * * *

5. Amend section 52.212-5 by--

a. Revising the date of the clause;

b. Revising paragraphs (b)(34) and (e)(1)(xii); and

c. Amending Alternate II by revising the date of the Alternate and paragraph (e)(1)(ii)(L).

The revised text reads as follows:

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

* * * * *

Contract Terms and Conditions Required To Implement Statutes or Executive Orders--Commercial Items (Nov 2013)

* * * * *

(b) * * *

(34) 52.222-54, Employment Eligibility Verification (Aug 2013). (Executive Order 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

* * * * *

(e) * * *

(1) * * *

(xii) 52.222-54, Employment Eligibility Verification (Aug 2013).

* * * * *

Alternate II (Nov 2013). * * *

(e)(1) * * *

(ii) * * *

(L) 52.222-54, Employment Eligibility Verification (Aug 2013).

* * * * *

6. Amend section 52.213-4 by--

a. Revising the date of the clause;

b. Redesignating paragraphs (a)(2)(v) through (a)(2)(viii) as paragraphs (a)(2)(vi) through (a)(2)(ix);

c. Adding a new paragraph (a)(2)(v);

d. Removing the newly redesignated paragraph (a)(2)(ix); and

e. Revising paragraph (b)(2)(i).

The revised and added text reads as follows:

52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items) (Nov 2013)

(a) * * *

(2) * * *

(v) 52.232-39, Unenforceability of Unauthorized Obligations (Jun 2013).

* * * * *

(b) * * *

(2) * * *

(i) 52.209-6, Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (Aug 2013) (Applies to contracts over $30,000).

* * * * *

[FR Doc. 2013-28055 Filed 11-22-13; 8:45 am]

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[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-28056]

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket No. FAR 2013-0078, Sequence No. 7]

Federal Acquisition Regulation; Federal Acquisition Circular 2005-71; Small Entity Compliance Guide

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

ACTION: Small Entity Compliance Guide.

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SUMMARY: This document is issued under the joint authority of DOD, GSA, and NASA. This Small Entity Compliance Guide has been prepared in accordance with section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of the rules appearing in Federal Acquisition Circular (FAC) 2005-71, which amends the Federal Acquisition Regulation (FAR). An asterisk (*) next to a rule indicates that a regulatory flexibility analysis has been prepared. Interested parties may obtain further information regarding these rules by referring to FAC 2005-71, which precedes this document. These documents are also available via the Internet at http://www.regulations.gov.

DATES: November 25, 2013.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2005-71 and the FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755.

Rules Listed in FAC 2005-71

Item

Subject

FAR Case

Analyst

I

Accelerated Payments to Small Business Subcontractors.

2012-031

Chambers.

II

New Designated Country--Croatia.

2013-019

Davis.

III

Technical Amendments

   

SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005-71 amends the FAR as specified below:

Item I--Accelerated Payments to Small Business Subcontractors (FAR Case 2012-031)

This final rule amends the FAR to add a new clause, Providing Accelerated Payments to Small Business Subcontractors, as part of the implementation of OMB Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors (as extended by OMB Memorandum M-13-15, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors). This new clause requires the prime contractor, upon receipt of accelerated payments from the Government, to make accelerated payments to small business subcontractors, to the maximum extent practicable, after receipt of a proper invoice and all proper documentation from small business subcontractors. This clause will be inserted into all new solicitations issued after the effective date of this rule and resultant contracts, including solicitations and contracts for the acquisition of commercial items. This rule does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions. Small businesses benefit from this clause in that they should be paid more expeditiously by their prime contractor, which should improve small businesses overall cash flow.

Item II--New Designated Country--Croatia (FAR Case 2013-019)

This final rule amends the FAR to add Croatia as a new designated country under the World Trade Organization Government Procurement Agreement (WTO GPA). Croatia joined the European Union on July 1, 2013, which is a party to the WTO GPA.

Therefore, this rule adds Croatia to the list of WTO GPA countries wherever it appears in the FAR, whether as a separate definition, part of the definition of ``designated country,'' the definition of

``Recovery Act designated country,'' or as part of the list of countries exempt from the prohibition of acquisition of products produced by forced or indentured child labor. As a member of the European Union, Croatia also is a party to the Agreement on Trade in Civil Aircraft.

This final rule will not have a significant economic impact on small entities.

Item III--Technical Amendments

Editorial changes are made at FAR 31.205-6, 52.202-1, 52.212-3, 52.212-5, and 52.213-4.

Dated: November 18, 2013.

William Clark,

Acting Director, Office of Government-Wide Acquisition Policy, Office of Acquisition Policy, Office of Government-Wide Policy.

[FR Doc. 2013-28056 Filed 11-22-13; 8:45 am]

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