83 FR 28145 - Federal Acquisition Regulation: Violations of Arms Control Treaties or Agreements With the United States
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 83, Issue 116 (June 15, 2018)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 83, Issue 116 (June 15, 2018)
| Page Range | 28145-28149 | |
| FR Document | 2018-12848 |
[Federal Register Volume 83, Number 116 (Friday, June 15, 2018)] [Rules and Regulations] [Pages 28145-28149] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-12848] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 9, 12, 13, and 52 [FAC 2005-99; FAR Case 2017-018; Item II; Docket No. 2017-0018, Sequence No. 1] RIN 9000-AN57 Federal Acquisition Regulation: Violations of Arms Control Treaties or Agreements With the United States AGENCY: 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 a section of the National Defense Authorization Act for Fiscal Year 2017 that addresses measures against persons involved in activities that violate arms control treaties or agreements with the United States. DATES: Effective: June 15, 2018. Comment Date: Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before August 14, 2018 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to FAC 2005-99, FAR Case 2017- 018, by any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ``FAR Case 2017-018.'' Select the link ``Comment Now'' that corresponds with ``FAR Case 2017-018.'' Follow the instructions provided on the screen. Please include your name, company name (if any), and ``FAR Case 2017-018'' on your attached document. Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street NW, 2nd Floor, Washington, DC 20405. Instructions: Please submit comments only and cite FAC 2005-99, FAR Case 2017-018, in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. 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 2005-99, FAR Case 2017-018. SUPPLEMENTARY INFORMATION: I. Background This interim rule amends the FAR to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year 2017 that addresses measures against persons involved in activities that violate arms control treaties or agreements with the United States. This rule amends FAR part 9, Contractor Qualifications, and adds a provision at FAR 52.209-13 to implement section 1290 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), codified at 22 U.S.C. 2593e. The President submits annually to Congress a report prepared by the Secretary of State with the concurrence of the Director of Central Intelligence and in consultation with the Secretary of Defense, the Secretary of Energy, and the Chairman of the Joint Chiefs of Staff, on the status of United States policy and actions with respect to arms control, nonproliferation, and disarmament, pursuant to section 403 of the Arms Control and Disarmament Act (22 U.S.C. 2593a). In this report, the Secretary of State assesses adherence to and compliance with arms control, nonproliferation, and disarmament agreements and commitments by the United States and other countries. This report is submitted in unclassified form, with classified annexes, as appropriate. The Department of State's most recent unclassified report submitted in April 2018 to Congress is available at https://www.state.gov/t/avc/rls/rpt/. The Secretary of the Treasury is required to submit to the appropriate Congressional committees a report, consistent with the protection of intelligence sources and methods, identifying every person with respect to whom there is credible information indicating that the person is-- An individual who is a citizen, national, or permanent resident of, or an entity organized under the laws of, a noncompliant country; and [[Page 28146]] Has engaged in any activity that contributed to or is a significant factor in the President's or the Secretary of State's determination that such country is noncompliant. The Secretary of the Treasury also identifies any person that has provided material support for such non-compliance to a person engaged in the noncompliant activities. This information will be posted, as appropriate and consistent with the protection of intelligence sources and methods, as an exclusion record in the System for Award Management (SAM) database. If the contractor is on the SAM Exclusions list, the contractor may not be awarded contracts, including those under the simplified acquisition threshold (SAT) or for commercial items (see FAR 9.405 and 17.207), and contracts may not be renewed or extended. With some exceptions, the head of any executive agency is prohibited from entering into, renewing, or extending a contract for the procurement of products or services from any person so identified in a report under subsection (a) of 22 U.S.C. 2593e. II. Discussion and Analysis This interim rule amends the FAR to add a new section, FAR 9.109, to address the prohibition on contracting with an entity involved in activities that violate arms control treaties or agreements with the United States. In addition to citation of the statute (22 U.S.C. 2593e) and the contracting prohibition therein, FAR 9.109 includes-- The statutory exception from the contracting prohibition for the procurement of products or services along a major route of supply to a zone of active combat or a major contingency operation; Discussion of offeror certification and the remedies for submission of a false certification; and Prescription for use of the certification provision in each solicitation for the acquisition of products or services (including construction) that exceeds the SAT, other than solicitations for the acquisition of commercial items. The interim rule includes a provision at FAR 52.209-13, Violation of Arms Control Treaties or Agreements--Certification, to implement the statutory requirement for a certification from each offeror that the offeror, and any entity owned or controlled by the offeror, has not engaged in any activity that contributed to or is a significant factor in the President's or the Secretary of State's determination that such country is not in full compliance with its obligations undertaken in all arms control, nonproliferation, and disarmament agreements or commitments to which the United States is a participating state (subsection (a)(1)(A)(ii) of 22 U.S.C. 2593e). The provision also provides procedures to assist offerors in using the Secretary of State report as necessary to complete the certification. Initially, in this interim rule, this certification will not be included in the annual representations and certifications, because implementation considerations that will ensure minimum burden to prospective contractors are in development. The certification is not required for acquisitions under the SAT or for acquisition of commercial items, but if a contractor's activities related to violations of arms control treaties results in the contractor being added to the SAM Exclusions list, the contractor may not be awarded contracts, including those under the SAT or for commercial items. The rule also establishes that the remedies for rendering a false certification are debarment or suspension for not less than 2 years or termination of any contract resulting from the false certification. The Government will not consider the offer of an offeror that has not provided a certification in paragraph (b)(1) of the provision at 52.209-13, unless the offeror provides with its offer information that the President of the United States has waived application under 22 U.S.C. 2593e(d) or (e) or determined under 22 U.S.C. 2593e(g)(2) that the entity has ceased all activities for which measures were imposed under 22 U.S.C. 2593e(b). III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items Consistent with 41 U.S.C. 1905-1907, DoD, GSA, and NASA do not intend to apply the certification required by 22 U.S.C. 2593e to contracts at or below the SAT, or to contracts for the acquisition of commercial items, including commercially available off-the-shelf (COTS) items. However, when acquiring products or services (including construction) the Government is still prohibited from contracting with entities listed as excluded in the System for Award Management database. A. Applicability to Contracts at or Below the Simplified Acquisition Threshold. 41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. This law does not contain criminal or civil penalties and the FAR Council does not intend to make a written determination. Therefore, the certification required by this rule will only be included in solicitations that exceed the SAT. B. Applicability to Contracts for the Acquisition of Commercial Items, Including COTS Items 41 U.S.C. 1906 governs the applicability of laws to contracts and subcontracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts and subcontracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts and subcontracts for the acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS items, and provides the Administrator for Federal Procurement Policy with the decision authority to determine that it is in the best interest of the Federal Government to apply a provision of law to acquisitions of COTS items. The FAR Council and the Administrator for Federal Procurement Policy do not intend to make such determinations, and the certification required by the statute will not be included in contracts and subcontracts for the acquisitions of commercial items, including COTS items. 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 [[Page 28147]] 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. Executive Order 13771 This interim rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule is issued with respect to a national security function of the United States. See section 4(a) of E.O. 13771. VI. Regulatory Flexibility Act 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. Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) has been performed, and is summarized as follows: This rule implements section 1290 of the National Defense Authorization Act for Fiscal Year 2017, codified at 22 U.S.C. 2593e. The objective of the rule is to prohibit award to offerors that violate arms control treaties or agreements with the United States, or own or control entities that do so; and terminate contractors, and suspend or debar offerors and contractors that have provided false certifications regarding such violations. The statutes which are the legal basis for the FAR are 40 U.S.C. 121(c), 10 U.S.C. Chapter 137, and 51 U.S.C. 20113. Using Federal Procurement Data System (FPDS) data for FY 2016, this rule will apply to 7,616 small entities that are required to fill out the required certification. This rule will require certification from each offeror that submits an offer in response to a Government solicitation that exceeds the simplified acquisition threshold (SAT) and is not for the acquisition of a commercial item, including commercially available off-the-shelf (COTS) items. Initially, in this interim rule, this certification will not be included in the annual representations and certifications, because implementation considerations that will ensure minimum burden to prospective contractors are in development. The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD, GSA, and NASA considered whether to apply the certification provision to contracts at or below the SAT and to the acquisition of commercial items, including COTS items, or to exempt such acquisitions in accordance with 41 U.S.C. 1905-1907. DoD, GSA, and NASA did not sign determinations that the provision should apply to contracts at or below the SAT and to the acquisition of commercial items, including COTS items, thus minimizing the impact on small business to the extent permitted by law. The Regulatory Secretariat Division 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 Division. 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 2017-018), in correspondence. VII. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) provides that an agency generally cannot conduct or sponsor a collection of information, and no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, unless that collection has obtained Office of Management and Budget (OMB) approval and displays a currently valid OMB Control Number. DoD, GSA, and NASA requested and OMB authorized emergency processing of an information collection involved in this rule, as OMB Control Number 9000-0198, consistent with 5 CFR 1320.13. DoD, GSA, and NASA have determined the following conditions have been met: a. The collection of information is needed prior to the expiration of time periods normally associated with a routine submission for review under the provisions of the Paperwork Reduction Act. b. The collection of information is essential to the mission of the agencies to ensure the Federal Government does not award contracts to offerors, and any entity owned or controlled by the offeror that has engaged in any activity that violates arms control treaties or agreements with the United States. c. The use of normal clearance procedures would prevent the collection of information from contractors, for national security purposes, as discussed in Section VIII of this preamble. Section 1290 of Public Law 114-328 (codified at 22 U.S.C. 2593e) went into effect on December 23, 2016. The implementation of this FAR case will protect against doing business with entities that engage in any activity that contributed to or is a significant factor in a country's failure to comply with arms control treaties or agreements with the United States. This action is necessary because of statutory requirements relating to a national security function of the United States. Moreover, DoD, GSA, and NASA cannot comply with the normal clearance procedures because public harm is reasonably likely to result if current clearance procedures are followed. DoD, GSA, and NASA intend to provide separate 60-day notice in the Federal Register requesting public comment on the information collections contained within this rule. Some numbers below are rounded. Agency: DoD, GSA, and NASA. Type of Information Collection: New Collection. Title of Collection: Violations of Arms Control Treaties or Agreements with the United States. Affected Public: Private Sector--Business. Total Estimated Number of Respondents: 11,634. Average Responses per Respondents: 8.6. Total Estimated Number of Responses: 99,796. Preparation Hours per Response: .4 hours. Total Annual Time Burden: 40,478. OMB Control Number: 9000-0198. The public reporting burden for this collection of information consists of a certification that the offeror and no entity owned or controlled by the offeror has engaged in any activity that contributes to the violation of arms control treaties or agreements with the United States. Public reporting burden for this collection of information is estimated to average .4 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 information. In the subsequent 60 day notice published by DoD, GSA, and NASA will invite public comments. VIII. 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 of statutory requirements relating to a national security function of the United States. Section 1290 of Public Law 114- 328 (codified at 22 U.S.C. 2593e) went into effect on December 23, 2016. The implementation of this FAR case will protect against doing business with [[Page 28148]] entities that engage in any activity that contributed to or is a significant factor in a country's failure to comply with arms control treaties or agreements with the United States. Arms control, nonproliferation, and disarmament agreements can limit or reduce threats to the security of the United States and our allies, contributing to transparency and stability on a global and regional scale. Failure of participating countries to comply with the obligations and adhere to the commitments they have undertaken can present serious national security challenges. Therefore, robust compliance enforcement is a critical aspect of U.S. national security planning. 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, 9, 12, 13, and 52 Government procurement. Dated: June 7, 2018. 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, 9, 12, 13, and 52 as set forth below: 0 1. The authority citation for 48 CFR parts 1, 9, 12, 13, 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 ACQUSITION REGULATION SYSTEM 1.106 [Amended] 0 2. Amend section 1.106, in the table following the introductory text, by adding in numerical sequence, FAR segment ``52.209-13'' and its corresponding OMB control number ``9000-0198''. PART 9--CONTRACTOR QUALIFICATIONS 0 3. Add sections 9.109, 9.109-1, 9.109-2, 9.109-3, 9.109-4, and 9.109-5 to read as follows: 9.109 Prohibition on contracting with an entity involved in activities that violate arms control treaties or agreements with the United States. 9.109-1 Authority. This section implements 22 U.S.C. 2593e. 9.109-2 Prohibition. Contracting officers shall not award, renew, or extend a contract for the procurement of products or services with an entity identified as excluded in the System for Award Management database, specifically for this subpart, on the basis of involvement in activities that violate arms control treaties or agreements with the United States. 9.109-3 Exception. The prohibition in 9.109-2 does not apply to contracts for the procurement of products or services along a major route of supply to a zone of active combat or major contingency operation, as specified in statute or by the cognizant Combatant Commander, in consultation with the Chief of Mission. As of May 10, 2018, countries along the major route of supply to support operations in Afghanistan are Afghanistan, Georgia, the Kyrgyz Republic, Pakistan, the Republic of Armenia, the Republic of Azerbaijan, the Republic of Kazakhstan, the Republic of Tajikistan, the Republic of Uzbekistan, and Turkmenistan. 9.109-4 Certification by the offeror. (a) In order to be eligible for contract award, an offeror is required to-- (1)(i) Certify that it does not engage and has not engaged in any activity that contributed to or was a significant factor in the President's or Secretary of State's determination that a foreign country is in violation of its obligations undertaken in any arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. The determinations are described in the most recent unclassified annual report provided to Congress pursuant to section 403 of the Arms Control and Disarmament Act (22 U.S.C. 2593a). The report is available via the internet at https://www.state.gov/t/avc/rls/rpt/; and (ii) Similarly certify with regard to any entity owned or controlled by the offeror; or (2) Provide with its offer information that the President of the United States has-- (i) Waived application under 22 U.S.C. 2593e(d) or (e); or (ii) Determined under 22 U.S.C. 2593e(g)(2) that the entity has ceased all activities for which measures were imposed under 22 U.S.C. 2593e(b). (b) If certifying in accordance with 52.209-13(b)(1), the Offeror is required to submit the certification with the offer. It is not included in the annual representations and certifications in the System for Award Management database. (c) The contracting officer may rely on an offeror's certification unless the contracting officer has reason to question the certification. (d) An offeror that falsely certifies under 52.209-13 will be subject to such remedies as suspension or debarment for a period of not less than 2 years, subject to the procedures set forth in subpart 9.4 (including 9.406-1 or 9.407-1), or termination of any contract resulting from the false certification. 9.109-5 Solicitation provision. Unless the exception at 9.109-3 applies, the contracting officer shall include the provision at 52.209-13, Violation of Arms Control Treaties or Agreements--Certification, in each solicitation for the acquisition of products or services (including construction) that exceeds the simplified acquisition threshold, other than solicitations for the acquisition of commercial items. 0 4. Amend section 9.405 by adding a sentence to the end of paragraph (b) to read as follows: 9.405 Effect of listing. * * * * * (b) * * * In addition, agencies shall not extend contracts with contractors that have been declared ineligible pursuant to 22 U.S.C. 2593e. * * * * * 0 5. Amend section 9.406-4 by revising paragraphs (a)(1)(i) and (ii) and adding paragraph (a)(1)(iii) to read as follows: 9.406-4 Period of debarment. (a)(1) * * * (i) Debarment for violation of the provisions of 41 U.S.C. chapter 81, Drug-Free Workplace (see 23.506) may be for a period not to exceed 5 years; (ii) Debarments under 9.406-2(b)(2) shall be for 1 year unless extended pursuant to paragraph (b) of this section; and (iii) Debarments pursued as a remedy under 9.109-4(d), for a false certification regarding violations of arms control treaties or agreements with the United States, shall be for a period of not less than 2 years. * * * * * PART 12--ACQUISITION OF COMMERCIAL ITEMS 0 6. Amend section 12.503 by-- 0 a. Redesignating paragraphs (b)(1) through (3) as paragraphs (b)(2) through (4), respectively; and [[Page 28149]] 0 b. Adding a new paragraph (b)(1) to read as follows: 12.503 Applicability of certain laws to Executive agency contracts for the acquisition of commercial items. * * * * * (b) * * * (1) 22 U.S.C. 2593e, Requirement for a certification under Measures Against Persons Involved in Activities that Violate Arms Control Treaties or Agreements with the United States (see 9.109). * * * * * PART 13--SIMPLIFIED ACQUISITION PROCEDURES 0 7. Amend section 13.005 by adding paragraph (a)(11) to read as follows: 13.005 List of laws inapplicable to contracts and subcontracts at or below the simplified acquisition threshold. (a) * * * (11) 22 U.S.C. 2593e (Measures Against Persons Involved in Activities that Violate Arms Control Treaties or Agreements with the United States). (The requirement at 22 U.S.C. 2593e(c)(3)(B) to provide a certification does not apply). * * * * * PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 8. Add section 52.209-13 to read as follows: 52.209-13 Violation of Arms Control Treaties or Agreements-- Certification. As prescribed in 9.109-5, insert the following provision: Violation of Arms Control Treaties or Agreements--Certification (JUN 2018) (a) This provision does not apply to acquisitions below the simplified acquisition threshold or to acquisitions of commercial items as defined at FAR 2.101. (b) Certification. [Offeror shall check either (1) or (2).] ____ (1) The Offeror certifies that-- (i) It does not engage and has not engaged in any activity that contributed to or was a significant factor in the President's or Secretary of State's determination that a foreign country is in violation of its obligations undertaken in any arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. The determinations are described in the most recent unclassified annual report provided to Congress pursuant to section 403 of the Arms Control and Disarmament Act (22 U.S.C. 2593a). The report is available via the internet at https://www.state.gov/t/avc/rls/rpt/; and (ii) No entity owned or controlled by the Offeror has engaged in any activity that contributed to or was a significant factor in the President's or Secretary of State's determination that a foreign country is in violation of its obligations undertaken in any arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. The determinations are described in the most recent unclassified annual report provided to Congress pursuant to section 403 of the Arms Control and Disarmament Act (22 U.S.C. 2593a). The report is available via the internet at https://www.state.gov/t/avc/rls/rpt/; or ____ (2) The Offeror is providing separate information with its offer in accordance with paragraph (d)(2) of this provision. (c) Procedures for reviewing the annual unclassified report (see paragraph (b)(1) of this provision). For clarity, references to the report in this section refer to the entirety of the annual unclassified report, including any separate reports that are incorporated by reference into the annual unclassified report. (1) Check the table of contents of the annual unclassified report and the country section headings of the reports incorporated by reference to identify the foreign countries listed there. Determine whether the Offeror or any person owned or controlled by the Offeror may have engaged in any activity related to one or more of such foreign countries. (2) If there may have been such activity, review all findings in the report associated with those foreign countries to determine whether or not each such foreign country was determined to be in violation of its obligations undertaken in an arms control, nonproliferation, or disarmament agreement to which the United States is a party, or to be not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. For clarity, in the annual report an explicit certification of non-compliance is equivalent to a determination of violation. However, the following statements in the annual report are not equivalent to a determination of violation: (i) An inability to certify compliance. (ii) An inability to conclude compliance. (iii) A statement about compliance concerns. (3) If so, determine whether the Offeror or any person owned or controlled by the Offeror has engaged in any activity that contributed to or is a significant factor in the determination in the report that one or more of these foreign countries is in violation of its obligations undertaken in an arms control, nonproliferation, or disarmament agreement to which the United States is a party, or is not adhering to its arms control, nonproliferation, or disarmament commitments in which the United States is a participating state. Review the narrative for any such findings reflecting a determination of violation or non-adherence related to those foreign countries in the report, including the finding itself, and to the extent necessary, the conduct giving rise to the compliance or adherence concerns, the analysis of compliance or adherence concerns, and efforts to resolve compliance or adherence concerns. (4) The Offeror may submit any questions with regard to this report by email to NDAA1290Cert@state.gov. To the extent feasible, the Department of State will respond to such email inquiries within 3 business days. (d) Do not submit an offer unless-- (1) A certification is provided in paragraph (b)(1) of this provision and submitted with the offer; or (2) In accordance with paragraph (b)(2) of this provision, the Offeror provides with its offer information that the President of the United States has-- (i) Waived application under U.S.C. 2593e(d) or (e); or (ii) Determined under 22 U.S.C. 2593e(g)(2) that the entity has ceased all activities for which measures were imposed under 22 U.S.C.2593e(b). (e) Remedies. The certification in paragraph (b)(1) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly submitted a false certification, in addition to other remedies available to the Government, such as suspension or debarment, the Contracting Officer may terminate any contract resulting from the false certification. (End of provision) [FR Doc. 2018-12848 Filed 6-14-18; 8:45 am] BILLING CODE 6820-EP-P
![Federal Register / Vol. 83, No. 116 / Friday, June 15, 2018 / Rules and Regulations 28145
Developed or Provided by Kaspersky Lab and DEPARTMENT OF DEFENSE information provided. To confirm
Other Covered Entities (Jul 2018) (Section receipt of your comment(s), please
1634 of Pub. L. 115–91). GENERAL SERVICES check www.regulations.gov,
* * * * * ADMINISTRATION approximately two to three days after
submission to verify posting (except
■ 8. Amend section 52.213–4 by—
NATIONAL AERONAUTICS AND allow 30 days for posting of comments
■ a. Revising the date of the clause; and SPACE ADMINISTRATION submitted by mail).
■ b. Redesignating paragraphs (a)(1)(ii) FOR FURTHER INFORMATION CONTACT: Ms.
through (vii) as paragraphs (a)(1)(iii) 48 CFR Parts 1, 9, 12, 13, and 52 Cecelia L. Davis, Procurement Analyst,
through (viii), respectively, and adding [FAC 2005–99; FAR Case 2017–018; at 202–219–0202 for clarification of
a new paragraph (a)(1)(ii). Item II; Docket No. 2017–0018, Sequence content. For information pertaining to
The revision and addition read as No. 1] status or publication schedules, contact
follows: RIN 9000–AN57
the Regulatory Secretariat Division at
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52.213–4 Terms and Conditions— Federal Acquisition Regulation: 99, FAR Case 2017–018.
Simplified Acquisitions (Other Than Violations of Arms Control Treaties or SUPPLEMENTARY INFORMATION:
Commercial Items). Agreements With the United States
I. Background
* * * * *
AGENCY: Department of Defense (DoD), This interim rule amends the FAR to
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ACTION: Interim rule. measures against persons involved in
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(1) * * * activities that violate arms control
SUMMARY: DoD, GSA, and NASA are treaties or agreements with the United
(ii) 52.204–23, Prohibition on Contracting issuing an interim rule amending the
for Hardware, Software, and Services States. This rule amends FAR part 9,
Federal Acquisition Regulation (FAR) to Contractor Qualifications, and adds a
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Other Covered Entities (Jul 2018) (Section provision at FAR 52.209–13 to
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1634 of Pub. L. 115–91).
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■ 9. Amend section 52.244–6 by— that violate arms control treaties or 22 U.S.C. 2593e.
agreements with the United States. The President submits annually to
■ a. Revising the date of the clause;
DATES: Congress a report prepared by the
■ b. Redesignating paragraphs (c)(1)(iv)
Effective: June 15, 2018. Secretary of State with the concurrence
through (xviii) as paragraphs (c)(1)(v) Comment Date: Interested parties of the Director of Central Intelligence
through (xix), respectively, and adding should submit written comments to the and in consultation with the Secretary
a new paragraph (c)(1)(iv). Regulatory Secretariat Division at one of of Defense, the Secretary of Energy, and
The revision and addition read as the addresses shown below on or before the Chairman of the Joint Chiefs of Staff,
follows: August 14, 2018 to be considered in the on the status of United States policy and
formation of the final rule. actions with respect to arms control,
52.244–6 Subcontracts for Commercial ADDRESSES: Submit comments in nonproliferation, and disarmament,
Items.
response to FAC 2005–99, FAR Case pursuant to section 403 of the Arms
* * * * * 2017–018, by any of the following Control and Disarmament Act (22 U.S.C.
Subcontracts for Commercial Items (Jul methods: 2593a). In this report, the Secretary of
• Regulations.gov: http:// State assesses adherence to and
2018)
www.regulations.gov. Submit comments compliance with arms control,
* * * * * via the Federal eRulemaking portal by nonproliferation, and disarmament
(c)(1) * * * searching for ‘‘FAR Case 2017–018.’’ agreements and commitments by the
(iv) 52.204–23, Prohibition on Contracting Select the link ‘‘Comment Now’’ that United States and other countries. This
for Hardware, Software, and Services corresponds with ‘‘FAR Case 2017– report is submitted in unclassified form,
Developed or Provided by Kaspersky Lab and 018.’’ Follow the instructions provided with classified annexes, as appropriate.
Other Covered Entities (Jul 2018) (Section on the screen. Please include your The Department of State’s most recent
1634 of Pub. L. 115–91). name, company name (if any), and unclassified report submitted in April
* * * * * ‘‘FAR Case 2017–018’’ on your attached 2018 to Congress is available at https://
[FR Doc. 2018–12847 Filed 6–14–18; 8:45 am] document. www.state.gov/t/avc/rls/rpt/.
BILLING CODE 6820–EP–P • Mail: General Services The Secretary of the Treasury is
Administration, Regulatory Secretariat required to submit to the appropriate
Division (MVCB), ATTN: Ms. Lois Congressional committees a report,
Mandell, 1800 F Street NW, 2nd Floor, consistent with the protection of
Washington, DC 20405. intelligence sources and methods,
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Instructions: Please submit comments identifying every person with respect to
only and cite FAC 2005–99, FAR Case whom there is credible information
2017–018, in all correspondence related indicating that the person is—
to this case. All comments received will • An individual who is a citizen,
be posted without change to http:// national, or permanent resident of, or an
www.regulations.gov, including any entity organized under the laws of, a
personal and/or business confidential noncompliant country; and
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![28148 Federal Register / Vol. 83, No. 116 / Friday, June 15, 2018 / Rules and Regulations
entities that engage in any activity that 9.109–2 Prohibition. representations and certifications in the
contributed to or is a significant factor Contracting officers shall not award, System for Award Management
in a country’s failure to comply with renew, or extend a contract for the database.
arms control treaties or agreements with procurement of products or services (c) The contracting officer may rely on
the United States. Arms control, with an entity identified as excluded in an offeror’s certification unless the
nonproliferation, and disarmament the System for Award Management contracting officer has reason to
agreements can limit or reduce threats database, specifically for this subpart, question the certification.
to the security of the United States and on the basis of involvement in activities (d) An offeror that falsely certifies
our allies, contributing to transparency that violate arms control treaties or under 52.209–13 will be subject to such
and stability on a global and regional agreements with the United States. remedies as suspension or debarment
scale. Failure of participating countries for a period of not less than 2 years,
to comply with the obligations and 9.109–3 Exception. subject to the procedures set forth in
adhere to the commitments they have The prohibition in 9.109–2 does not subpart 9.4 (including 9.406–1 or 9.407–
undertaken can present serious national apply to contracts for the procurement 1), or termination of any contract
security challenges. Therefore, robust of products or services along a major resulting from the false certification.
compliance enforcement is a critical route of supply to a zone of active
aspect of U.S. national security combat or major contingency operation, 9.109–5 Solicitation provision.
planning. However, pursuant to 41 as specified in statute or by the Unless the exception at 9.109–3
U.S.C. 1707 and FAR 1.501–3(b), DoD, cognizant Combatant Commander, in applies, the contracting officer shall
GSA, and NASA will consider public consultation with the Chief of Mission. include the provision at 52.209–13,
comments received in response to this As of May 10, 2018, countries along the Violation of Arms Control Treaties or
interim rule in the formation of the final major route of supply to support Agreements—Certification, in each
rule. operations in Afghanistan are solicitation for the acquisition of
Afghanistan, Georgia, the Kyrgyz products or services (including
List of Subjects in 48 CFR Parts 1, 9, 12, Republic, Pakistan, the Republic of construction) that exceeds the
13, and 52 Armenia, the Republic of Azerbaijan, simplified acquisition threshold, other
Government procurement. the Republic of Kazakhstan, the than solicitations for the acquisition of
Republic of Tajikistan, the Republic of commercial items.
Dated: June 7, 2018. Uzbekistan, and Turkmenistan. ■ 4. Amend section 9.405 by adding a
William F. Clark,
9.109–4 Certification by the offeror. sentence to the end of paragraph (b) to
Director, Office of Government-wide read as follows:
Acquisition Policy, Office of Acquisition (a) In order to be eligible for contract
Policy, Office of Government-wide Policy. award, an offeror is required to— 9.405 Effect of listing.
(1)(i) Certify that it does not engage
Therefore, DoD, GSA, and NASA * * * * *
and has not engaged in any activity that
amend 48 CFR parts 1, 9, 12, 13, and 52 (b) * * * In addition, agencies shall
contributed to or was a significant factor
as set forth below: not extend contracts with contractors
in the President’s or Secretary of State’s
that have been declared ineligible
■ 1. The authority citation for 48 CFR determination that a foreign country is
pursuant to 22 U.S.C. 2593e.
parts 1, 9, 12, 13, and 52 continues to in violation of its obligations
read as follows: undertaken in any arms control, * * * * *
nonproliferation, or disarmament ■ 5. Amend section 9.406–4 by revising
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113. agreement to which the United States is paragraphs (a)(1)(i) and (ii) and adding
a party, or is not adhering to its arms paragraph (a)(1)(iii) to read as follows:
PART 1—FEDERAL ACQUSITION control, nonproliferation, or
REGULATION SYSTEM disarmament commitments in which the 9.406–4 Period of debarment.
United States is a participating state. (a)(1) * * *
1.106 [Amended] The determinations are described in the (i) Debarment for violation of the
■ 2. Amend section 1.106, in the table most recent unclassified annual report provisions of 41 U.S.C. chapter 81,
following the introductory text, by provided to Congress pursuant to Drug-Free Workplace (see 23.506) may
adding in numerical sequence, FAR section 403 of the Arms Control and be for a period not to exceed 5 years;
segment ‘‘52.209–13’’ and its Disarmament Act (22 U.S.C. 2593a). The (ii) Debarments under 9.406–2(b)(2)
corresponding OMB control number report is available via the internet at shall be for 1 year unless extended
‘‘9000–0198’’. https://www.state.gov/t/avc/rls/rpt/; and pursuant to paragraph (b) of this section;
(ii) Similarly certify with regard to and
PART 9—CONTRACTOR any entity owned or controlled by the (iii) Debarments pursued as a remedy
QUALIFICATIONS offeror; or under 9.109–4(d), for a false
(2) Provide with its offer information certification regarding violations of arms
■ 3. Add sections 9.109, 9.109–1, 9.109– that the President of the United States control treaties or agreements with the
2, 9.109–3, 9.109–4, and 9.109–5 to read has— United States, shall be for a period of
as follows: (i) Waived application under 22 not less than 2 years.
U.S.C. 2593e(d) or (e); or * * * * *
(ii) Determined under 22 U.S.C.
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9.109 Prohibition on contracting with an
entity involved in activities that violate arms 2593e(g)(2) that the entity has ceased all PART 12—ACQUISITION OF
control treaties or agreements with the activities for which measures were COMMERCIAL ITEMS
United States. imposed under 22 U.S.C. 2593e(b).
(b) If certifying in accordance with ■ 6. Amend section 12.503 by—
9.109–1 Authority.
52.209–13(b)(1), the Offeror is required ■ a. Redesignating paragraphs (b)(1)
This section implements 22 U.S.C. to submit the certification with the offer. through (3) as paragraphs (b)(2) through
2593e. It is not included in the annual (4), respectively; and
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![Federal Register / Vol. 83, No. 116 / Friday, June 15, 2018 / Rules and Regulations 28149
■ b. Adding a new paragraph (b)(1) to (ii) No entity owned or controlled by the adherence concerns, the analysis of
read as follows: Offeror has engaged in any activity that compliance or adherence concerns, and
contributed to or was a significant factor in efforts to resolve compliance or adherence
12.503 Applicability of certain laws to the President’s or Secretary of State’s concerns.
Executive agency contracts for the determination that a foreign country is in (4) The Offeror may submit any questions
acquisition of commercial items. violation of its obligations undertaken in any with regard to this report by email to
* * * * * arms control, nonproliferation, or NDAA1290Cert@state.gov. To the extent
(b) * * * disarmament agreement to which the United feasible, the Department of State will respond
States is a party, or is not adhering to its arms to such email inquiries within 3 business
(1) 22 U.S.C. 2593e, Requirement for
control, nonproliferation, or disarmament days.
a certification under Measures Against commitments in which the United States is (d) Do not submit an offer unless—
Persons Involved in Activities that a participating state. The determinations are (1) A certification is provided in paragraph
Violate Arms Control Treaties or described in the most recent unclassified (b)(1) of this provision and submitted with
Agreements with the United States (see annual report provided to Congress pursuant the offer; or
9.109). to section 403 of the Arms Control and (2) In accordance with paragraph (b)(2) of
* * * * * Disarmament Act (22 U.S.C. 2593a). The this provision, the Offeror provides with its
report is available via the internet at https:// offer information that the President of the
PART 13—SIMPLIFIED ACQUISITION www.state.gov/t/avc/rls/rpt/; or United States has—
____ (2) The Offeror is providing separate (i) Waived application under U.S.C.
PROCEDURES information with its offer in accordance with 2593e(d) or (e); or
paragraph (d)(2) of this provision. (ii) Determined under 22 U.S.C. 2593e(g)(2)
■ 7. Amend section 13.005 by adding
(c) Procedures for reviewing the annual that the entity has ceased all activities for
paragraph (a)(11) to read as follows: unclassified report (see paragraph (b)(1) of which measures were imposed under 22
13.005 List of laws inapplicable to this provision). For clarity, references to the U.S.C.2593e(b).
contracts and subcontracts at or below the report in this section refer to the entirety of (e) Remedies. The certification in
simplified acquisition threshold. the annual unclassified report, including any paragraph (b)(1) of this provision is a
separate reports that are incorporated by material representation of fact upon which
(a) * * * reference into the annual unclassified report. reliance was placed when making award. If
(11) 22 U.S.C. 2593e (Measures (1) Check the table of contents of the it is later determined that the Offeror
Against Persons Involved in Activities annual unclassified report and the country knowingly submitted a false certification, in
that Violate Arms Control Treaties or section headings of the reports incorporated addition to other remedies available to the
Agreements with the United States). by reference to identify the foreign countries Government, such as suspension or
(The requirement at 22 U.S.C. listed there. Determine whether the Offeror debarment, the Contracting Officer may
2593e(c)(3)(B) to provide a certification or any person owned or controlled by the terminate any contract resulting from the
does not apply). Offeror may have engaged in any activity false certification.
related to one or more of such foreign
* * * * * countries. (End of provision)
(2) If there may have been such activity, [FR Doc. 2018–12848 Filed 6–14–18; 8:45 am]
PART 52—SOLICITATION PROVISIONS review all findings in the report associated BILLING CODE 6820–EP–P
AND CONTRACT CLAUSES with those foreign countries to determine
whether or not each such foreign country was
■ 8. Add section 52.209–13 to read as determined to be in violation of its
follows: DEPARTMENT OF DEFENSE
obligations undertaken in an arms control,
nonproliferation, or disarmament agreement GENERAL SERVICES
52.209–13 Violation of Arms Control
to which the United States is a party, or to
Treaties or Agreements—Certification.
be not adhering to its arms control,
ADMINISTRATION
As prescribed in 9.109–5, insert the nonproliferation, or disarmament
following provision: commitments in which the United States is NATIONAL AERONAUTICS AND
a participating state. For clarity, in the SPACE ADMINISTRATION
Violation of Arms Control Treaties or annual report an explicit certification of non-
Agreements—Certification (JUN 2018) compliance is equivalent to a determination 48 CFR Chapter 1
(a) This provision does not apply to of violation. However, the following
statements in the annual report are not [Docket No. FAR 2018–0001, Sequence
acquisitions below the simplified acquisition
equivalent to a determination of violation: No. 3]
threshold or to acquisitions of commercial
items as defined at FAR 2.101. (i) An inability to certify compliance.
(b) Certification. [Offeror shall check either (ii) An inability to conclude compliance. Federal Acquisition Regulation:
(1) or (2).] (iii) A statement about compliance Federal Acquisition Circular 2005–99;
____ (1) The Offeror certifies that— concerns. Small Entity Compliance Guide
(i) It does not engage and has not engaged (3) If so, determine whether the Offeror or
in any activity that contributed to or was a any person owned or controlled by the AGENCY: Department of Defense (DoD),
significant factor in the President’s or Offeror has engaged in any activity that General Services Administration (GSA),
Secretary of State’s determination that a contributed to or is a significant factor in the and National Aeronautics and Space
foreign country is in violation of its determination in the report that one or more Administration (NASA).
obligations undertaken in any arms control, of these foreign countries is in violation of its ACTION: Small Entity Compliance Guide.
nonproliferation, or disarmament agreement obligations undertaken in an arms control,
to which the United States is a party, or is nonproliferation, or disarmament agreement SUMMARY: This document is issued
not adhering to its arms control, to which the United States is a party, or is under the joint authority of DoD, GSA,
nonproliferation, or disarmament not adhering to its arms control, and NASA. This Small Entity
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commitments in which the United States is nonproliferation, or disarmament Compliance Guide has been prepared
a participating state. The determinations are commitments in which the United States is
consistent with section 212 of the Small
described in the most recent unclassified a participating state. Review the narrative for
annual report provided to Congress pursuant any such findings reflecting a determination Business Regulatory Enforcement
to section 403 of the Arms Control and of violation or non-adherence related to those Fairness Act of 1996. It consists of a
Disarmament Act (22 U.S.C. 2593a). The foreign countries in the report, including the summary of the rules appearing in
report is available via the internet at https:// finding itself, and to the extent necessary, the Federal Acquisition Circular (FAC)
www.state.gov/t/avc/rls/rpt/; and conduct giving rise to the compliance or 2005–99, which amends the Federal
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Document Created: 2018-11-02 12:00:50
Document Modified: 2018-11-02 12:00:50
| 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. | |
| Dates | Effective: June 15, 2018. | |
| 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 2005-99, FAR Case 2017-018. | |
| FR Citation | 83 FR 28145 | |
| RIN Number | 9000-AN57 | |
| CFR Citation | 48
CFR
12 48 CFR 13 48 CFR 1 48 CFR 52 48 CFR 9 |
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