80 FR 75903 - Federal Acquisition Regulation: Prohibition on Contracting With Corporations With Delinquent Taxes or a Felony Conviction
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 80, Issue 233 (December 4, 2015)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 80, Issue 233 (December 4, 2015)
| Page Range | 75903-75907 | |
| FR Document | 2015-30456 |
[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)] [Rules and Regulations] [Pages 75903-75907] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-30456] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 4, 9, 12, and 52 [FAC 2005-85; FAR Case 2015-011; Item No. I; Docket No. 2015-0011; Sequence No. 1] RIN 9000-AN05 Federal Acquisition Regulation: Prohibition on Contracting With Corporations With Delinquent Taxes or a Felony Conviction AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement sections of the Consolidated and Further Continuing Appropriations Act, 2015, to prohibit the Federal Government from entering into a contract with any corporation having a delinquent Federal tax liability or a felony conviction under any Federal law, unless the agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government. DATES: Effective date: February 26, 2016. Comment date: Interested parties should submit written comments to the Regulatory Secretariat on or before February 2, 2016 to be considered in the formation of the final rule. ADDRESSES: Submit comments identified by FAC 2005-85, FAR Case 2015- 011, by any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ``FAR Case 2015-011''. Select the link ``Comment Now'' that corresponds with ``FAR Case 2015-011''. Follow the instructions provided on the screen. Please include your name, company name (if any), and ``FAR Case 2015-011'' on your attached document. Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001. Instructions: Please submit comments only and cite FAC 2005-85, FAR Case 2015-011, Prohibition on Contracting with Corporation with Delinquent Taxes or a Felony Conviction, in all correspondence related to this case. Comments received generally will be posted without change to http://regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three Days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). 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 Division at 202-501-4755. Please cite FAC 2005-85, FAR Case 2015-011. SUPPLEMENTARY INFORMATION: I. Background This interim rule amends the FAR to implement sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and section 523 of Division B of the same act. A. Representation This rule requires that all offerors responding to Federal solicitations make a representation regarding whether the offeror is a corporation with a delinquent tax liability or a felony conviction under Federal law, as required by sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent appropriations acts). [[Page 75904]] When an offeror provides an affirmative response in paragraph (b)(1) or (2) to the representation, the contracting officer is required to request additional information from the offeror and notify the agency official responsible for initiating debarment or suspension action. The contracting officer shall not make an award to the corporation unless an agency suspending or debarring official has considered suspension or debarment of the corporation and determined that this further action is not necessary to protect the interests of the Government. B. Certification This rule also adds a certification requirement regarding tax matters, in solicitations for which the resultant contract (including options) may have a value greater than $5,000,000, and that will use funds made available by Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent appropriations acts). Agencies funded by these acts include the Department of Commerce, the Department of Justice, NASA, as well as some smaller agencies. If the certification regarding tax matters is applicable, then the contracting officer shall not award any contract in an amount greater than $5,000,000, unless the offeror affirmatively certified in its offer to all the required certifications regarding tax matters in FAR Clause 52.209-12(b). This certification will not be included in the annual representations and certifications, because it has very limited application. In accordance with 41 U.S.C. 1304, the certification included in this regulation is specifically required by statute, and therefore its inclusion in the FAR does not require the written approval of the Administrator for Federal Procurement Policy. C. Applicability to Commercial Items (Including Commercially Available Off-the-Shelf (COTS) Items) and Acquisitions Not Greater Than the Simplified Acquisition Threshold This interim rule implements sections 744 and 745 of Division E, Title VII, and section 523 of Division B, Title V, of the Consolidated and Further Continuing Appropriations Act, 2015. Sections 744 and 745 of Division E prohibit any Federal agency from using funds appropriated or otherwise made available by the Act or any other act to enter into a contract with a corporation that has delinquent unpaid taxes or has been convicted of a felony criminal violation under any Federal law within the past 24 months, unless the Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the government. Section 523 of Division B, which affects Commerce, Justice, NASA, and some smaller agencies, requires certification with regard to violations of certain tax matters. The FAR Council and the Administrator for Federal Procurement Policy have determined that it is not in the best interest of the United States to exempt contracts for the acquisition of commercial items (including commercially available off-the-shelf items) or acquisitions in amounts not greater than the simplified acquisition threshold (other than the certification requirement), because it imposes a minimal burden (just a representation or, in limited instances, a certification), in contrast to the benefit of avoiding awarding contracts to corporations that have delinquent unpaid taxes, or felony convictions for violations of Federal Law, or to prospective contractors with other violations relating to Federal tax matters. Tax liability is a serious matter and Congressional hearings (e.g., the Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, U.S. Senate, held a hearing on May 24, 2011, entitled, ``Stimulus Contractors Who Cheat On Their Taxes: What Happened?,'' and the Subcommittee on Government Management, Organization, and Procurement, Committee on Oversight and Government Reform, House of Representatives held a hearing on April 19, 2007, also concerning Federal contractors who abuse the Federal tax system) have been held to identify ways to ensure that funds are not spent with contractors with tax delinquencies. It is in the interest of the United States to only award contracts to entities that are responsible and law-abiding. This determination is consistent with the current coverage in paragraph (h)(4) of the FAR clause at 52.212-3, Offeror Representations and Certifications--Commercial Items, which requires offerors to represent whether they have, within a three-year period preceding their offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. II. 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. III. Regulatory Flexibility Act Although DoD, GSA, and NASA do not expect that this change will 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., an Initial Regulatory Flexibility Analysis (IRFA) has been prepared and is summarized as follows: This action is necessary to implement sections 744 and 745 of Division E of the Consolidated and Continuing Further Appropriations Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent appropriations acts), to prohibit using any of the funds made available under that or any other act to enter a contract with any corporation with any delinquent Federal tax liability or a felony conviction, unless an agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government. The rule also implements section 523 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent appropriations acts). This section prohibits the award of any contract in an amount greater than $5,000,000, using funds appropriated under Division B of the Consolidated and Continuing Further Appropriations Act, 2015, unless the offeror affirmatively certifies that it has filed all Federal tax returns required during the three years preceding the certification; has not been convicted of a criminal offense under the Internal Revenue Code of 1986; and has not, more than 90 days prior to certification, been notified of any unpaid Federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non- frivolous administrative or judicial proceeding. The objective of the interim rule is to prohibit award to entities that are delinquent in the payment of Federal taxes or have been convicted of a felony under Federal law. The [[Page 75905]] legal basis for the rule is the above cited statutes. Based on current data with regard to active registrants in the System for Award Management (SAM), the rule will apply to approximately 65,000 small business concerns, which are required to complete the annual representations and certifications at least once per year in order to keep their registration in SAM current. The information collection requirement imposed by this rule is minimal--it is a brief representation, and in some cases also a certification. Each representation is estimated to require an average of six minutes to complete. The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD, GSA, and NASA were unable to identify any significant alternatives that would reduce the impact on small businesses and still meet the objectives of the statute. However, other than the potential for not receiving award if the small entity is delinquent in payment of Federal taxes or has been convicted of a felony, there is no significant economic impact on small entities because the information collection burden imposed by the rule is minimal. The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. 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 2015-011), in correspondence. IV. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The rule contains information collection requirements. The Office of Management and Budget (OMB) has cleared this information collection requirement under OMB Control Number 9000-0193, titled: Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction. A. Public Reporting Burden The public reporting burden for this collection of information is estimated to average .1 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. 1. 52.209-11 Representation The annual reporting burden for 52.209-11 is estimated as follows: Respondents: 352,000. Responses per respondent: Approximately 1.01. Total annual responses: 355,520. Preparation hours per response: .1 hours. Total response Burden Hours: 35,552. 2. 52.209-12 Certification The annual reporting burden for 52.209-12 is estimated as follows: Respondents: 440. Responses per respondent: 3. Total annual responses: 1,320. Preparation hours per response: .1 hours. Total response Burden Hours: 132. 3. Total The average annual reporting burden is estimated as follows: Total annual responses: 356,840. Preparation hours per response: .1 hours. Total response Burden Hours: 35,684. B. Request for Comments Regarding Paperwork Burden Submit comments, including suggestions for reducing this burden, not later than February 2, 2016 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001. Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. Requesters may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat Divison (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405- 0001. Please cite OMB Control Number 9000-0193, Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction, in all correspondence. V. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because these appropriations act restrictions apply to all funds appropriated under the respective acts, and it is important to provide immediate direction to contracting officers, so that they do not inadvertently violate the conditions placed upon the expenditure of the funds. The effective date is set as February 26, 2016, to allow the Government to conform its procurement databases. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA, and NASA will consider public comments received in response to this interim rule in the formation of the final rule. List of Subjects in 48 CFR Parts 1, 4, 9, 12, and 52 Government procurement. Dated: November 20, 2015. William F. Clark, 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 1, 4, 9, 12, and 52 as set forth below: 0 1. The authority citation for 48 CFR parts 1, 4, 9, 12, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 0 2. Amend section 1.106 in the table following the introductory text by adding, in sequence, FAR segments ``52.209-11'' and ``52.209-12'' and their corresponding OMB Control number ``9000-0193''. PART 4--ADMINISTRATIVE MATTERS 0 3. Amend section 4.1202 by redesignating paragraphs (a)(8) through (29) as paragraphs (a)(9) through (30), respectively; and adding a new paragraph (a)(8) to read as follows: 4.1202 Solicitation provision and contract clause. (a) * * * [[Page 75906]] (8) 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. * * * * * PART 9--CONTRACTOR QUALIFICATIONS 0 4. Amend section 9.104-5 by revising the section heading and paragraph (b) and adding paragraphs (c) and (d) to read as follows: 9.104-5 Representation and certifications regarding responsibility matters. * * * * * (b) The provision at 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law, implements sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent appropriations acts). When an offeror provides an affirmative response in paragraph (b)(1) or (2) of the provision at 52.209-11 or paragraph (q)(2)(i) or (ii) of provision 52.212-3, the contracting officer shall-- (1) Promptly, upon receipt of offers, request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror's responsibility to the contracting officer (but see 9.405); (2) Notify, in accordance with agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official responsible for initiating debarment or suspension action; and (3) Not award to the corporation unless an agency suspending or debarring official has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government. (c) If the provision at 52.209-12, Certification Regarding Tax Matters, is applicable (see 9.104-7(e)), then the contracting officer shall not award any contract in an amount greater than $5,000,000, unless the offeror affirmatively certified in its offer, as required by paragraph (b)(1), (2), and (3) of the provision. (d) Offerors who do not furnish the representation or certifications or such information as may be requested by the contracting officer shall be given an opportunity to remedy the deficiency. Failure to furnish the representation or certifications or such information may render the offeror nonresponsible. 0 5. Amend section 9.104-7 by adding paragraphs (d) and (e) to read as follows: 9.104-7 Solicitation provisions and contract clauses. * * * * * (d) The contracting officer shall insert the provision 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law, in all solicitations. (e) For agencies receiving funds subject to section 523 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and similar provisions in subsequent appropriations acts, the contracting officer shall insert the provision 52.209-12, Certification Regarding Tax Matters, in solicitations for which the resultant contract (including options) may have a value greater than $5,000,000. Division B of the Consolidated and Continuing Further Appropriations Act, 2015 appropriates funds for the following agencies: The Department of Commerce, the Department of Justice, the National Aeronautics and Space Administration, the Office of Science and Technology Policy, the National Science Foundation, the Commission on Civil Rights, the Equal Employment Opportunity Commission, the U.S. International Trade Commission, the Legal Services Corporation, the Marine Mammal Commission, the Office of the United States Trade Representative, and the State Justice Institute. PART 12--ACQUISITION OF COMMERCIAL ITEMS 0 6. Amend section 12.301 by redesignating paragraphs (d)(4) through (6) as paragraphs (d)(5) through (7), respectively, and adding a new paragraph (d)(4) to read as follows: 12.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (d) * * * (4) Insert the provision at 52.209-12, Certification Regarding Tax Matters, as prescribed at 9.104-7(e). * * * * * PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 7. Amend section 52.204-8 by-- 0 a. Revising the date of the provision; 0 b. Redesignating paragraphs (c)(1)(vii) through (xxi) as (c)(1)(viii) through (xxii), respectively; and 0 c. Adding a new paragraph (c)(1)(vii). The revision and addition read as follows: 52.204-8 Annual Representations and Certifications. * * * * * Annual Representations and Certifications (Feb 2016) * * * * * (c)(1) * * * (vii) 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. This provision applies to all solicitations. * * * * * 0 8. Add sections 52.209-11 and 52.209-12 to read as follows: 52.209-11 Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. As prescribed in 9.104-7(d), insert the following provision: Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law (Feb 2016) (a) As required by sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), and similar provisions, if contained in subsequent appropriations acts, the Government will not enter into a contract with any corporation that-- (1) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless an agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or (2) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless an agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government. (b) The Offeror represents that-- (1) It is [ ] is not [ ] a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and (2) It is [ ] is not [ ] a corporation that was convicted of a felony criminal violation under a Federal law within the preceding 24 months. (End of provision) 52.209-12 Certification Regarding Tax Matters. As prescribed in 9.104-7(e), insert the following provision: [[Page 75907]] Certification Regarding Tax Matters (Feb 2016) (a) This provision implements section 523 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), and similar provisions, if contained in subsequent appropriations acts. (b) If the Offeror is proposing a total contract price that will exceed $5,000,000 (including options), the Offeror shall certify that, to the best of its knowledge and belief, it-- (1) Has [ ] filed all Federal tax returns required during the three years preceding the certification; (2) Has not [ ] been convicted of a criminal offense under the Internal Revenue Code of 1986; and (3) Has not [ ], more than 90 days prior to certification, been notified of any unpaid Federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding. (End of provision) 0 9. Amend section 52.212-3 by-- 0 a. Revising the date of the provision; 0 b. Removing from the introductory text and the first undesignated paragraph in paragraph (b)(2) ``through p'' and adding ``though q'' in their places, respectively; and 0 c. Adding paragraph (q). The revision and addition read as follows: 52.212-3 Offeror Representations and Certifications--Commercial Items. * * * * * Offeror Representations and Certifications--Commercial Items (Feb 2016) * * * * * (q) Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. (1) As required by sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), and similar provisions, if contained in subsequent appropriations acts, The Government will not enter into a contract with any corporation that-- (i) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless an agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or (ii) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless an agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government. (2) The Offeror represents that-- (i) It is [ ] is not [ ] a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and (ii) It is [ ] is not [ ] a corporation that was convicted of a felony criminal violation under a Federal law within the preceding 24 months. (End of provision) [FR Doc. 2015-30456 Filed 12-3-15; 8:45 am] BILLING CODE 6820-EP-P
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Item V—Retention Periods (FAR Case effective February 26, 2016, and item V ADDRESSES: Submit comments
2015–009) which is effective January 4, 2016. identified by FAC 2005–85, FAR Case
This final rule amends the FAR by Dated: November 23, 2015. 2015–011, by any of the following
updating the Government file retention Claire M. Grady,
methods:
periods to conform with the retention • Regulations.gov: http://
Director, Defense Procurement and
periods in the National Archives and Acquisition Policy.
www.regulations.gov. Submit comments
Records Administration (NARA) via the Federal eRulemaking portal by
Dated: November 24, 2015.
General Records Schedule (GRS). searching for ‘‘FAR Case 2015–011’’.
Jeffrey A. Koses, Select the link ‘‘Comment Now’’ that
Language is also added to instruct Senior Procurement Executive/Deputy CAO,
agencies that require a shorter retention corresponds with ‘‘FAR Case 2015–
Office of Acquisition Policy, U.S. General 011’’. Follow the instructions provided
period for certain records to request Services Administration.
approval from NARA through the on the screen. Please include your
Dated: November 20, 2015. name, company name (if any), and
agency’s record officer. This rule change William P. McNally,
does not place any new requirements on ‘‘FAR Case 2015–011’’ on your attached
Assistant Administrator, Office of document.
small entities; the only change is the
timeframe for retention by the
Procurement, National Aeronautics and • Mail: General Services
Space Administration. Administration, Regulatory Secretariat
Government of Government records. [FR Doc. 2015–30455 Filed 12–3–15; 8:45 am] (MVCB), ATTN: Ms. Flowers, 1800 F
Item VI—Establishing a Minimum BILLING CODE 6820–EP–P Street NW., 2nd Floor, Washington, DC
Wage for Contractors (FAR Case 2015– 20405–0001.
003) Instructions: Please submit comments
DEPARTMENT OF DEFENSE only and cite FAC 2005–85, FAR Case
DoD, GSA, and NASA are issuing a
final rule adopting the interim rule GENERAL SERVICES 2015–011, Prohibition on Contracting
published December 15, 2014, with ADMINISTRATION with Corporation with Delinquent Taxes
change. The interim rule amended the or a Felony Conviction, in all
FAR to implement Executive Order NATIONAL AERONAUTICS AND correspondence related to this case.
13658 and a Department of Labor final SPACE ADMINISTRATION Comments received generally will be
rule issued on October 7, 2014, both posted without change to http://
entitled ‘‘Establishing a Minimum Wage 48 CFR Parts 1, 4, 9, 12, and 52 regulations.gov, including any personal
for Contractors,’’ which established a and/or business confidential
new minimum wage for covered service [FAC 2005–85; FAR Case 2015–011; Item information provided. To confirm
and construction contracts of $10.10 per No. I; Docket No. 2015–0011; Sequence No. receipt of your comment(s), please
hour, as of January 1, 2015. The 1] check www.regulations.gov,
Executive Order minimum wage will be approximately two to three Days after
RIN 9000–AN05
adjusted annually, by the Department of submission to verify posting (except
Labor. Contracting officers will include Federal Acquisition Regulation: allow 30 days for posting of comments
a clause in covered contracts and will Prohibition on Contracting With submitted by mail).
adjust contract prices for the annual Corporations With Delinquent Taxes or FOR FURTHER INFORMATION CONTACT: Ms.
adjustments in the Executive Order a Felony Conviction Cecelia L. Davis, Procurement Analyst,
minimum wage. Contractors shall at 202–219–0202 for clarification of
consider any subcontractor request, AGENCIES: Department of Defense (DoD), content. For information pertaining to
including requests by small businesses General Services Administration (GSA), status or publication schedules, contact
subcontractors, for a subcontract price and National Aeronautics and Space the Regulatory Secretariat Division at
adjustment due to the annual Administration (NASA). 202–501–4755. Please cite FAC 2005–
adjustment in the Executive Order ACTION: Interim rule. 85, FAR Case 2015–011.
minimum wage. SUPPLEMENTARY INFORMATION:
There is no significant impact on SUMMARY: DoD, GSA, and NASA are
small entities imposed by the FAR rule. issuing an interim rule amending the I. Background
Federal Acquisition Regulation (FAR) to This interim rule amends the FAR to
Item VII—Technical Amendment
implement sections of the Consolidated implement sections 744 and 745 of
Editorial change is made at FAR and Further Continuing Appropriations Division E of the Consolidated and
1.106. Act, 2015, to prohibit the Federal Further Continuing Appropriations Act,
Dated: November 20, 2015. Government from entering into a 2015 (Pub. L. 113–235) and section 523
William Clark, contract with any corporation having a of Division B of the same act.
Director, Office of Government-wide delinquent Federal tax liability or a
Acquisition Policy, Office of Acquisition felony conviction under any Federal A. Representation
Policy, Office of Government-wide Policy. law, unless the agency has considered This rule requires that all offerors
Federal Acquisition Circular (FAC) suspension or debarment of the responding to Federal solicitations make
2005–85 is issued under the authority of corporation and has made a a representation regarding whether the
the Secretary of Defense, the determination that this further action is offeror is a corporation with a
Administrator of General Services, and not necessary to protect the interests of delinquent tax liability or a felony
the Government.
wgreen on DSK2VPTVN1PROD with RULES2
the Administrator for the National conviction under Federal law, as
Aeronautics and Space Administration. DATES: Effective date: February 26, 2016. required by sections 744 and 745 of
Unless otherwise specified, all Comment date: Interested parties Division E of the Consolidated and
Federal Acquisition Regulation (FAR) should submit written comments to the Further Continuing Appropriations Act,
and other directive material contained Regulatory Secretariat on or before 2015 (Pub. L. 113–235) (and similar
in FAC 2005–85 is effective December 4, February 2, 2016 to be considered in the provisions in subsequent appropriations
2015 except for item I and III which are formation of the final rule. acts).
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legal basis for the rule is the above cited 1. 52.209–11 Representation V. Determination To Issue an Interim
statutes. Rule
Based on current data with regard to active The annual reporting burden for
registrants in the System for Award 52.209–11 is estimated as follows: A determination has been made under
Management (SAM), the rule will apply to Respondents: 352,000. the authority of the Secretary of Defense
approximately 65,000 small business Responses per respondent: (DoD), the Administrator of General
concerns, which are required to complete the Approximately 1.01. Services (GSA), and the Administrator
annual representations and certifications at Total annual responses: 355,520. of the National Aeronautics and Space
least once per year in order to keep their Preparation hours per response: .1 Administration (NASA) that urgent and
registration in SAM current. compelling reasons exist to promulgate
hours.
The information collection requirement
Total response Burden Hours: 35,552. this interim rule without prior
imposed by this rule is minimal—it is a brief
representation, and in some cases also a opportunity for public comment. This
2. 52.209–12 Certification action is necessary because these
certification. Each representation is estimated
to require an average of six minutes to The annual reporting burden for appropriations act restrictions apply to
complete. 52.209–12 is estimated as follows: all funds appropriated under the
The rule does not duplicate, overlap, or Respondents: 440. respective acts, and it is important to
conflict with any other Federal rules. Responses per respondent: 3. provide immediate direction to
DoD, GSA, and NASA were unable to Total annual responses: 1,320. contracting officers, so that they do not
identify any significant alternatives that Preparation hours per response: .1 inadvertently violate the conditions
would reduce the impact on small businesses
hours. placed upon the expenditure of the
and still meet the objectives of the statute.
However, other than the potential for not Total response Burden Hours: 132. funds. The effective date is set as
receiving award if the small entity is February 26, 2016, to allow the
3. Total Government to conform its procurement
delinquent in payment of Federal taxes or
has been convicted of a felony, there is no The average annual reporting burden databases. However, pursuant to 41
significant economic impact on small entities is estimated as follows: U.S.C. 1707 and FAR 1.501–3(b), DoD,
because the information collection burden Total annual responses: 356,840. GSA, and NASA will consider public
imposed by the rule is minimal. Preparation hours per response: .1 comments received in response to this
The Regulatory Secretariat has hours. interim rule in the formation of the final
submitted a copy of the IRFA to the Total response Burden Hours: 35,684. rule.
Chief Counsel for Advocacy of the Small B. Request for Comments Regarding List of Subjects in 48 CFR Parts 1, 4, 9,
Business Administration. A copy of the Paperwork Burden 12, and 52
IRFA may be obtained from the
Regulatory Secretariat. DoD, GSA, and Submit comments, including Government procurement.
NASA invite comments from small suggestions for reducing this burden, Dated: November 20, 2015.
business concerns and other interested not later than February 2, 2016 to: FAR William F. Clark,
parties on the expected impact of this Desk Officer, OMB, Room 10102, NEOB,
Director, Office of Government-wide
rule on small entities. Washington, DC 20503, and a copy to Acquisition Policy, Office of Acquisition
DoD, GSA, and NASA will also the General Services Administration, Policy, Office of Government-wide Policy.
consider comments from small entities Regulatory Secretariat Division (MVCB),
ATTN: Ms. Flowers, 1800 F Street NW., Therefore, DoD, GSA and NASA
concerning the existing regulations in amend 48 CFR parts 1, 4, 9, 12, and 52
subparts affected by the rule in 2nd Floor, Washington, DC 20405–0001.
Public comments are particularly as set forth below:
accordance with 5 U.S.C. 610. Interested
invited on: Whether this collection of ■ 1. The authority citation for 48 CFR
parties must submit such comments
separately and should cite 5 U.S.C. 610 information is necessary for the proper parts 1, 4, 9, 12, and 52 continues to
(FAR Case 2015–011), in performance of functions of the FAR, read as follows:
correspondence. and will have practical utility; whether Authority: 40 U.S.C. 121(c); 10 U.S.C.
our estimate of the public burden of this chapter 137; and 51 U.S.C. 20113.
IV. Paperwork Reduction Act collection of information is accurate,
The Paperwork Reduction Act (44 and based on valid assumptions and PART 1—FEDERAL ACQUISITION
U.S.C. Chapter 35) applies. The rule methodology; ways to enhance the REGULATIONS SYSTEM
contains information collection quality, utility, and clarity of the 1.106 [Amended]
requirements. The Office of information to be collected; and ways in
Management and Budget (OMB) has which we can minimize the burden of ■ 2. Amend section 1.106 in the table
cleared this information collection the collection of information on those following the introductory text by
requirement under OMB Control who are to respond, through the use of adding, in sequence, FAR segments
Number 9000–0193, titled: Prohibition appropriate technological collection ‘‘52.209–11’’ and ‘‘52.209–12’’ and their
on Contracting with Corporations with techniques or other forms of information corresponding OMB Control number
Delinquent Taxes or a Felony technology. ‘‘9000–0193’’.
Conviction. Requesters may obtain a copy of the
supporting statement from the General PART 4—ADMINISTRATIVE MATTERS
A. Public Reporting Burden Services Administration, Regulatory ■ 3. Amend section 4.1202 by
The public reporting burden for this Secretariat Divison (MVCB), ATTN: Ms. redesignating paragraphs (a)(8) through
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collection of information is estimated to Flowers, 1800 F Street NW., 2nd Floor, (29) as paragraphs (a)(9) through (30),
average .1 hours per response, including Washington, DC 20405–0001. Please cite respectively; and adding a new
the time for reviewing instructions, OMB Control Number 9000–0193, paragraph (a)(8) to read as follows:
searching existing data sources, Prohibition on Contracting with
gathering and maintaining the data Corporations with Delinquent Taxes or 4.1202 Solicitation provision and contract
needed, and completing and reviewing a Felony Conviction, in all clause.
the collection of information. correspondence. (a) * * *
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![75906 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations
(8) 52.209–11, Representation by 9.104–7 Solicitation provisions and 52.204–8 Annual Representations and
Corporations Regarding Delinquent Tax contract clauses. Certifications.
Liability or a Felony Conviction under * * * * * * * * * *
any Federal Law. (d) The contracting officer shall insert Annual Representations and Certifications
* * * * * the provision 52.209–11, Representation (Feb 2016)
by Corporations Regarding Delinquent * * * * *
PART 9—CONTRACTOR Tax Liability or a Felony Conviction (c)(1) * * *
QUALIFICATIONS under any Federal Law, in all (vii) 52.209–11, Representation by
solicitations. Corporations Regarding Delinquent Tax
■ 4. Amend section 9.104–5 by revising Liability or a Felony Conviction under any
(e) For agencies receiving funds
the section heading and paragraph (b) Federal Law. This provision applies to all
subject to section 523 of Division B of
and adding paragraphs (c) and (d) to solicitations.
the Consolidated and Further
read as follows: * * * * *
Continuing Appropriations Act, 2015
9.104–5 Representation and certifications (Pub. L. 113–235) and similar provisions ■ 8. Add sections 52.209–11 and
regarding responsibility matters. in subsequent appropriations acts, the 52.209–12 to read as follows:
* * * * * contracting officer shall insert the 52.209–11 Representation by Corporations
(b) The provision at 52.209–11, provision 52.209–12, Certification Regarding Delinquent Tax Liability or a
Representation by Corporations Regarding Tax Matters, in solicitations Felony Conviction under any Federal Law.
Regarding Delinquent Tax Liability or a for which the resultant contract As prescribed in 9.104–7(d), insert the
Felony Conviction under any Federal (including options) may have a value following provision:
Law, implements sections 744 and 745 greater than $5,000,000. Division B of
the Consolidated and Continuing Representation by Corporations Regarding
of Division E of the Consolidated and Delinquent Tax Liability or a Felony
Further Continuing Appropriations Act, Further Appropriations Act, 2015
Conviction under any Federal Law (Feb
2015 (Pub. L. 113–235) (and similar appropriates funds for the following 2016)
provisions in subsequent appropriations agencies: The Department of Commerce,
(a) As required by sections 744 and 745 of
acts). When an offeror provides an the Department of Justice, the National Division E of the Consolidated and Further
affirmative response in paragraph (b)(1) Aeronautics and Space Administration, Continuing Appropriations Act, 2015 (Pub. L.
or (2) of the provision at 52.209–11 or the Office of Science and Technology 113–235), and similar provisions, if
paragraph (q)(2)(i) or (ii) of provision Policy, the National Science contained in subsequent appropriations acts,
52.212–3, the contracting officer shall— Foundation, the Commission on Civil the Government will not enter into a contract
(1) Promptly, upon receipt of offers, Rights, the Equal Employment with any corporation that—
request such additional information Opportunity Commission, the U.S. (1) Has any unpaid Federal tax liability
that has been assessed, for which all judicial
from the offeror as the offeror deems International Trade Commission, the
and administrative remedies have been
necessary in order to demonstrate the Legal Services Corporation, the Marine exhausted or have lapsed, and that is not
offeror’s responsibility to the Mammal Commission, the Office of the being paid in a timely manner pursuant to an
contracting officer (but see 9.405); United States Trade Representative, and agreement with the authority responsible for
(2) Notify, in accordance with agency the State Justice Institute. collecting the tax liability, where the
procedures (see 9.406–3(a) and 9.407– awarding agency is aware of the unpaid tax
3(a)), the agency official responsible for PART 12—ACQUISITION OF liability, unless an agency has considered
initiating debarment or suspension COMMERCIAL ITEMS suspension or debarment of the corporation
and made a determination that suspension or
action; and debarment is not necessary to protect the
(3) Not award to the corporation ■ 6. Amend section 12.301 by
interests of the Government; or
unless an agency suspending or redesignating paragraphs (d)(4) through (2) Was convicted of a felony criminal
debarring official has considered (6) as paragraphs (d)(5) through (7), violation under any Federal law within the
suspension or debarment of the respectively, and adding a new preceding 24 months, where the awarding
corporation and made a determination paragraph (d)(4) to read as follows: agency is aware of the conviction, unless an
that suspension or debarment is not agency has considered suspension or
12.301 Solicitation provisions and debarment of the corporation and made a
necessary to protect the interests of the contract clauses for the acquisition of determination that this action is not
Government. commercial items. necessary to protect the interests of the
(c) If the provision at 52.209–12, * * * * * Government.
Certification Regarding Tax Matters, is (b) The Offeror represents that—
applicable (see 9.104–7(e)), then the (d) * * *
(1) It is [ ] is not [ ] a corporation that has
contracting officer shall not award any (4) Insert the provision at 52.209–12, any unpaid Federal tax liability that has been
contract in an amount greater than Certification Regarding Tax Matters, as assessed, for which all judicial and
$5,000,000, unless the offeror prescribed at 9.104–7(e). administrative remedies have been exhausted
affirmatively certified in its offer, as * * * * * or have lapsed, and that is not being paid in
required by paragraph (b)(1), (2), and (3) a timely manner pursuant to an agreement
PART 52—SOLICITATION PROVISIONS with the authority responsible for collecting
of the provision. the tax liability; and
(d) Offerors who do not furnish the AND CONTRACT CLAUSES
(2) It is [ ] is not [ ] a corporation that was
representation or certifications or such convicted of a felony criminal violation
information as may be requested by the ■ 7. Amend section 52.204–8 by—
under a Federal law within the preceding 24
contracting officer shall be given an ■ a. Revising the date of the provision;
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months.
opportunity to remedy the deficiency. ■ b. Redesignating paragraphs (c)(1)(vii)
through (xxi) as (c)(1)(viii) through (End of provision)
Failure to furnish the representation or
certifications or such information may (xxii), respectively; and 52.209–12 Certification Regarding Tax
render the offeror nonresponsible. ■ c. Adding a new paragraph (c)(1)(vii). Matters.
■ 5. Amend section 9.104–7 by adding The revision and addition read as As prescribed in 9.104–7(e), insert the
paragraphs (d) and (e) to read as follows: follows: following provision:
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![Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations 75907
Certification Regarding Tax Matters (Feb agency has considered suspension or I. Background
2016) debarment of the corporation and made a
determination that this action is not DoD, GSA, and NASA published an
(a) This provision implements section 523 interim rule in the Federal Register at
of Division B of the Consolidated and Further necessary to protect the interests of the
Continuing Appropriations Act, 2015 (Pub. L. Government. 80 FR 19504 on April 10, 2015, to
113–235), and similar provisions, if (2) The Offeror represents that— implement E.O. 13672, entitled,
contained in subsequent appropriations acts. (i) It is [ ] is not [ ] a corporation that has ‘‘Further Amendments to Executive
(b) If the Offeror is proposing a total any unpaid Federal tax liability that has been Order 11478, Equal Employment
contract price that will exceed $5,000,000 assessed, for which all judicial and Opportunity in the Federal Government,
(including options), the Offeror shall certify administrative remedies have been exhausted and Executive Order 11246, Equal
that, to the best of its knowledge and belief, or have lapsed, and that is not being paid in
Employment Opportunity,’’ and a final
it— a timely manner pursuant to an agreement
with the authority responsible for collecting rule issued by the Department of Labor
(1) Has [ ] filed all Federal tax returns
required during the three years preceding the the tax liability; and at 41 CFR part 60. One public comment
certification; (ii) It is [ ] is not [ ] a corporation that was was submitted on the interim rule.
(2) Has not [ ] been convicted of a criminal convicted of a felony criminal violation
II. Discussion and Analysis
offense under the Internal Revenue Code of under a Federal law within the preceding 24
1986; and months. The Civilian Agency Acquisition
(3) Has not [ ], more than 90 days prior to Council and the Defense Acquisition
certification, been notified of any unpaid (End of provision) Regulations Council (the Councils)
Federal tax assessment for which the liability [FR Doc. 2015–30456 Filed 12–3–15; 8:45 am] reviewed the public comment in the
remains unsatisfied, unless the assessment is BILLING CODE 6820–EP–P development of the final rule. The
the subject of an installment agreement or
respondent had pointed to an error in a
offer in compromise that has been approved
by the Internal Revenue Service and is not in clause number in the interim rule
DEPARTMENT OF DEFENSE publication. The error in FAR 52.213–4
default, or the assessment is the subject of a
non-frivolous administrative or judicial was corrected in a Technical
GENERAL SERVICES
proceeding. Amendment to Federal Acquisition
ADMINISTRATION
Circular 2005–82 published in the
(End of provision) Federal Register at 80 FR 26427 on May
■ 9. Amend section 52.212–3 by—
NATIONAL AERONAUTICS AND
7, 2015; therefore no further change to
■ a. Revising the date of the provision; SPACE ADMINISTRATION
the interim rule is required.
■ b. Removing from the introductory
text and the first undesignated 48 CFR Parts 1, 22, and 52 III. Executive Orders 12866 and 13563
paragraph in paragraph (b)(2) ‘‘through Executive Orders (E.O.s) 12866 and
p’’ and adding ‘‘though q’’ in their [FAC 2005–85; FAR Case 2015–013; Item
II; Docket No. 2015–0013, Sequence No. 1]
13563 direct agencies to assess all costs
places, respectively; and and benefits of available regulatory
■ c. Adding paragraph (q). alternatives and, if regulation is
RIN 9000–AN01
The revision and addition read as necessary, to select regulatory
follows: Federal Acquisition Regulation; approaches that maximize net benefits
52.212–3 Offeror Representations and Further Amendments to Equal (including potential economic,
Certifications—Commercial Items. Employment Opportunity environmental, public health and safety
* * * * * effects, distributive impacts, and
AGENCY: Department of Defense (DoD), equity). E.O. 13563 emphasizes the
Offeror Representations and Certifications— General Services Administration (GSA), importance of quantifying both costs
Commercial Items (Feb 2016) and National Aeronautics and Space and benefits, of reducing costs, of
* * * * * Administration (NASA). harmonizing rules, and of promoting
(q) Representation by Corporations ACTION: Final rule. flexibility. This is not a significant
Regarding Delinquent Tax Liability or a regulatory action and, therefore, was not
Felony Conviction under any Federal Law. (1) SUMMARY: DoD, GSA, and NASA have subject to review under Section 6(b) of
As required by sections 744 and 745 of adopted as final, without change, an
Division E of the Consolidated and Further E.O. 12866, Regulatory Planning and
interim rule amending the Federal Review, dated September 30, 1993. This
Continuing Appropriations Act, 2015 (Pub. L. Acquisition Regulation (FAR) to
113–235), and similar provisions, if rule is not a major rule under 5 U.S.C.
implement Executive Order (E.O.) 804.
contained in subsequent appropriations acts,
The Government will not enter into a
13672, entitled, ‘‘Further Amendments
contract with any corporation that— to Executive Order 11478, Equal IV. Regulatory Flexibility Act
(i) Has any unpaid Federal tax liability that Employment Opportunity in the Federal DoD, GSA, and NASA have prepared
has been assessed, for which all judicial and Government, and Executive Order a Final Regulatory Flexibility Analysis
administrative remedies have been exhausted 11246, Equal Employment (FRFA) consistent with the Regulatory
or have lapsed, and that is not being paid in Opportunity,’’ and a final rule issued by Flexibility Act, 5 U.S.C. 604, et seq. The
a timely manner pursuant to an agreement the Department of Labor (DOL).
with the authority responsible for collecting
FRFA is summarized as follows:
DATES: Effective: December 4, 2015.
the tax liability, where the awarding agency This rule is necessary to implement
is aware of the unpaid tax liability, unless an FOR FURTHER INFORMATION CONTACT: Mr. Executive Order (E.O.) 13672, ‘‘Further
agency has considered suspension or Edward Loeb, Procurement Analyst, at Amendments to Executive Order 11478,
debarment of the corporation and made a 202–501–0650 for clarification of Equal Employment Opportunity in the
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determination that suspension or debarment content. For information pertaining to Federal Government, and Executive Order
is not necessary to protect the interests of the status or publication schedules, contact 11246, Equal Employment Opportunity,’’ and
Government; or the Regulatory Secretariat at 202–501– a final rule issued by the DOL at 41 CFR part
(ii) Was convicted of a felony criminal 60, which published in the Federal Register
violation under any Federal law within the
4755. Please cite FAC 2005–85, FAR at 79 FR 72985 on December 09, 2014.
preceding 24 months, where the awarding Case 2015–013. The interim rule, published on April 10,
agency is aware of the conviction, unless an SUPPLEMENTARY INFORMATION: 2015, provides for a uniform policy to
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Document Created: 2015-12-14 13:52:31
Document Modified: 2015-12-14 13:52:31
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim rule. | |
| 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 Division at 202-501-4755. Please cite FAC 2005-85, FAR Case 2015-011. | |
| FR Citation | 80 FR 75903 | |
| RIN Number | 9000-AN05 | |
| CFR Citation | 48
CFR
12 48 CFR 1 48 CFR 4 48 CFR 52 48 CFR 9 |
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