[Federal Register Volume 68, Number 238 (Thursday, December 11, 2003)]
[Rules and Regulations]
[Pages 69250-69251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30476]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 9
[FAC 2001-18; FAR Case 2002-010; Item V]
RIN 9000-AJ48
Federal Acquisition Regulation; Debarment and Suspension--Order
Placement and Option Exercise
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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[[Page 69251]]
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to address the
placement of orders under existing contracts and agreements with
contractors that have been debarred, suspended, or proposed for
debarment.
DATES: Effective Date: January 12, 2004.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Mr. Craig R. Goral, Procurement
Analyst, at (202) 501-3856. Please cite FAC 2001-18, FAR case 2002-010.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 67 FR 67282, November 4, 2002, to require that
discretionary actions on the part of agencies meet the same standards
as agencies would have to meet in awarding new contracts. The rule
prohibited agencies from placing orders exceeding the guaranteed
minimum against existing contracts, placing orders against optional
Federal Supply Schedule contracts, adding new work, exercising options
or otherwise extending the duration of contracts with contractors that
are debarred, suspended or proposed for debarment unless the agency
head makes a determination that there are compelling reasons for doing
so.
Two comments from two commenters were received in response to the
proposed rule. The first commenter strongly supported the rule. The
second commenter suggested that the rule be clarified to indicate
whether it applies to credit card purchases or blanket purchase
agreements (BPAs), Memorandums of Agreement (MOAs), Military
Interdepartmental Purchase Requests (MIPRs), or Governmentwide
acquisition contracts (GWACs). A change was made to the rule to address
BPAs and Basic Ordering Agreements (BOAs) based on this recommendation.
It was not appropriate to address MOAs or MIPRs because they are not
entered into under the FAR. GWACs are indefinite delivery contracts and
are, therefore, already covered by the rule. BPAs and BOAs are
agreements rather than contracts. However, they should contain the
basic clauses that will apply to orders placed under them. Therefore,
the Councils revised the rule to address BPAs and BOAs. The requirement
that contractors must be responsible is statutory. Contractors
debarred, suspended, or proposed for debarment are excluded from doing
business with the Government unless there is a compelling reason to
conduct business with such a contractor.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because it only affects orders
placed by civilian agencies against existing contracts with contractors
that are debarred, suspended or proposed for debarment. The Defense FAR
Supplement already prohibits the placement of such orders.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
List of Subjects in 48 CFR Part 9
Government procurement.
Dated: December 4, 2003.
Laura Auletta,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 9 as set forth below:
PART 9--CONTRACTOR QUALIFICATIONS
0
1. The authority citation for 48 CFR part 9 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
0
2. Amend section 9.405 by revising paragraph (a); and removing from
paragraphs (d)(2) and (d)(3) the words ``or a designee''. The revised
text reads as follows:
9.405 Effect of listing.
(a) Contractors debarred, suspended, or proposed for debarment are
excluded from receiving contracts, and agencies shall not solicit
offers from, award contracts to, or consent to subcontracts with these
contractors, unless the agency head determines that there is a
compelling reason for such action (see 9.405-1(b), 9.405-2, 9.406-1(c),
9.407-1(d), and 23.506(e)). Contractors debarred, suspended, or
proposed for debarment are also excluded from conducting business with
the Government as agents or representatives of other contractors.
* * * * *
0
3. Amend section 9.405-1 by removing from the first sentence of
paragraph (a) the words ``or a designee''; revising paragraph (b); and
removing paragraph (c). The revised text reads as follows:
9.405-1 Continuation of current contracts.
* * * * *
(b) For contractors debarred, suspended, or proposed for debarment,
unless the agency head makes a written determination of the compelling
reasons for doing so, ordering activities shall not--
(1) Place orders exceeding the guaranteed minimum under indefinite
quantity contracts;
(2) Place orders under optional use Federal Supply Schedule
contracts, blanket purchase agreements, or basic ordering agreements;
or
(3) Add new work, exercise options, or otherwise extend the
duration of current contracts or orders.
9.405-2 [Amended]
0
4. Amend section 9.405-2 by removing from the first sentence of
paragraph (a) the words ``or a designee''.
[FR Doc. 03-30476 Filed 12-10-03; 8:45 am]
BILLING CODE 6820-EP-P