[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11762-11763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4091]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 44

[FAC 2005-01; FAR Case 2002-021; Item VIII]
RIN 9000-AJ75


Federal Acquisition Regulation; Use of FAR Clause 52.244-6, 
Subcontracts for Commercial Items

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

ACTION: Final rule.

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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 require that the 
FAR clause, Subcontracts for Commercial Items, be inserted in 
solicitations and contracts other than those for commercial items.

DATES: Effective Date: March 9, 2005.

FOR FURTHER INFORMATION CONTACT The FAR Secretariat at (202) 501-4755 
for

[[Page 11763]]

information pertaining to status or publication schedules. For 
clarification of content, contact Mr. Michael Jackson, Procurement 
Analyst, at (202) 208-4949. Please cite FAC 2005-01, FAR case 2002-021.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule amends FAR 44.403 by requiring the use of the 
clause at 52.244-6, Subcontracts for Commercial Items, in solicitations 
and contracts other than those for commercial items.
    The current clause prescription requires use of the clause in 
solicitations and contracts for ``supplies or services'' other than 
commercial items. It is not clear whether this includes solicitations 
and contracts for construction. The clause matrix at FAR 52.301 lists 
the clause at 52.244-6 as required for solicitations and contracts for 
construction.
    The revised clause prescription clarifies that the clause is 
required in all solicitations and contracts other than those for 
commercial items, thereby clearly including construction contracts that 
are not for the acquisition of commercial items.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 68 FR 61302, October 27, 2003. One positive public comment 
was received supporting the revisions to the clause prescription. This 
final rule differs from the proposed rule by not adding the phrase ``. 
. . and includes commercial construction materials but does not include 
construction itself'' to the definition ``Commercial item'' under 
paragraph (a) of FAR clause 52.244-6, Definitions. This additional 
language is unnecessary to clarify the ambiguity between the matrix and 
the clause prescription. The change at FAR 44.403 and the clause 
matrix, that already requires the clause in solicitations and contracts 
for construction, provide sufficient clarity. Also, the additional 
language in the proposed rule could have been interpreted to conflict 
with OFPP Memorandum dated July 3, 2003, Applicability of FAR Part 12 
to Construction Acquisitions. This rule is not intended to make any 
changes to existing OFPP guidance addressing the applicability of FAR 
Part 12 to construction acquisitions.
    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 the rule is a 
clarification of existing policy. Inclusion of FAR clause 52.244-6 
reduces the number of flow down clauses required in subcontracts for 
commercial items and commercial components.

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 44

    Government procurement.

    Dated: February 24, 2005.
Rodney P. Lantier,
Director, Contract Policy Division.

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Therefore, DoD, GSA, and NASA amend 48 CFR part 44 as set forth below:

PART 44--SUBCONTRACTING POLICIES AND PROCEDURES

0
1. The authority citation for 48 CFR part 44 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).
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2. Revise section 44.403 to read as follows:


44.403  Contract clause.

    The contracting officer shall insert the clause at 52.244-6, 
Subcontracts for Commercial Items, in solicitations and contracts other 
than those for commercial items.
[FR Doc. 05-4091 Filed 3-8-05; 8:45 am]
BILLING CODE 6820-EP-S