[Federal Register Volume 72, Number 61 (Friday, March 30, 2007)]
[Proposed Rules]
[Pages 15093-15094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1558]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9 and 52
[FAR Case 2006-011; Docket 200-0001; Sequence 6]
RIN 9000-AK73
Federal Acquisition Regulation; FAR Case 2006-011,
Representations and Certifications - Tax Delinquency
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to change the provision regarding
certification regarding debarment, suspension, proposed debarment, and
other responsibility matters, and to make changes to the language
regarding contractor qualifications, to add language regarding
nonpayment of taxes. This proposed rule requires offerors to also
certify whether or not they have, within a three-year period preceding
the offer, been convicted of or had a civil judgment rendered against
them for violating any tax law or failing to pay any tax, or been
notified of any delinquent taxes for which the liability remains
unsatisfied. In addition, the offeror will be required to certify
whether or not they have received a notice of a tax lien filed against
them for which the liability remains unsatisfied or the lien has not
been released.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before May 29, 2007 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2006-011 by any of
the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for any document by first selecting the proper document types
and selecting ``Federal Acquisition Regulation'' as the agency of
choice. At the ``Keyword'' prompt, type in the FAR case number (for
example, FAR Case 2006-001) and click on the ``Submit'' button. Please
include any personal and/or business information inside the
document.You may also search for any document by clicking on the
``''Advanced search/document search'' tab at the top of the screen,
selecting from the agency field ``Federal Acquisition Regulation '',
and typing the FAR case number in the keyword field. Select the
``Submit'' button.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2006-
011 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.
FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement
Analyst, at (202) 219-1813 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAR case 2006-011.
SUPPLEMENTARY INFORMATION:
A. Background
Offerors are currently required to certify whether or not, within a
three-year period preceding an offer, they have been convicted of or
had a civil judgment rendered against them for tax evasion or are
presently indicted for, or otherwise criminally or civilly charged
with, the commission of tax evasion. This proposed rule requires
offerors to also certify whether or not they have, within a three-year
period preceding the offer, been convicted of or had a civil judgment
rendered against them for violating any tax law or failing to pay any
tax, or been notified of any delinquent taxes for which the liability
remains unsatisfied. The offeror also will be required to certify
whether or not they have received a notice of a tax lien filed against
them for which the liability remains unsatisfied or the lien has not
been released. The additional certifications are needed to identify
prospective offerors that may have outstanding tax obligations that may
be delinquent so that the Government can make an informed
responsibility determination, as necessary. If an offeror certifies
that any of these conditions exist, the contracting officer may ask the
offeror for additional information related to the obligation to
evaluate the offeror's ability to perform under the contract. In
accordance with FAR 1.107,
[[Page 15094]]
the new certification must be approved by the Administrator for the
Office of Federal Procurement Policy before a final rule can be issued.
In FAR 9.105-1 a cross reference is made to FAR 9.408 which
describes additional actions contracting officers may take. In FAR
9.408 the language referring to the certifications at FAR 52.209-5 and
52.212-3 is simplified. In FAR 9.406-2 and 9.407-2, the following
additional causes for debarment or suspension are added: delinquent
taxes; unresolved tax liens; and a conviction of or civil judgment for
violating tax laws or failing to pay taxes. The nonpayment of taxes is
not restricted to Federal taxes, but may relate to any taxing entity.
The focus of ``delinquent taxes'' is on taxes which are still unpaid:
the affirmative certification is required after the taxpaying offeror
is notified that the taxes are delinquent, for taxes which remain
unpaid as of the date of certification.
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 Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because most prospective offerors pay their tax liabilities.
An Initial Regulatory Flexibility Analysis has, therefore, not been
performed. We invite comments from small businesses and other
interested parties. The Councils will consider comments from small
entities concerning the affected FAR Parts 9 and 52 in accordance with
5 U.S.C. 610. Interested parties must submit such comments separately
and should cite 5 U.S.C. 601, et seq. (FAR case 2006-011), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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 Parts 9 and 52
Government procurement.
Dated: March 26, 2007.
Ralph De Stefano,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 9 and
52 as set forth below:
1. The authority citation for 48 CFR parts 9 and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 9--CONTRACTOR QUALIFICATIONS
9.105-1 [Amended]
2. Amend section 9.105-1 in paragraph (c)(3) by adding ``(including
the certification at 52.209-5 or 52.212-3(h)--see 9.408)'' after
``proposal information,''.
3. Amend section 9.406-2 in paragraph (a)(3) by adding ``violating
tax laws, failing to pay taxes,'' after ``tax evasion,'' and by adding
paragraph (b)(1)(v) to read as follows:
9.406-2 Causes for debarment.
* * * * *
(b)(1) * * *
(v) Delinquent taxes or unresolved tax liens.
* * * * *
4. Amend section 9.407-2 paragraph (a)(3) by adding ``violating tax
laws, failing to pay taxes,'' after ``tax evasion,''; redesignating
paragraph (a)(7) as paragraph (a)(8) and by adding new paragraph
(a)(7); to read as follows:
9.407-2 [Amended]
(a) * * *
(7) Delinquent taxes or unresolved tax liens.
* * * * *
5. Amend section 9.408 by revising the introductory text of
paragraph (a) to read as follows:
9.408 Certification regarding debarment, suspension, proposed
debarment, and other responsibility matters.
(a) When an offeror provides an affirmative response in paragraph
(a)(1) of provision 52.209-5 or paragraph (h) of provision 52.212-3,
(e.g., indictment, conviction, debarment), the contracting officer
shall--
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Amend section 52.209-5 by--
a. Revising the date of the clause;
b. Adding to paragraph (a)(1)(i)(B) ``violating tax laws, failing
to pay taxes,'' after ``tax evasion,''; and by removing ``and'' from
the end of the paragraph;
c. Removing the period from the end of paragraph (a)(1)(i)(C) and
adding a semicolon in its place; and
d. Adding paragraphs (a)(1)(i)(D)and (a)(1)(i)(E).
The revised and added text read as follows:
52.209-5 Certification Regarding Debarment, Suspension, Proposed
Debarment, and Other Responsibility Matters.
* * * * *
CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND
OTHER RESPONSIBILITY MATTERS (DATE)
(a)(1) * * *
(i) * * *
(D) Have [square] have not [square], within a three-year period
preceding this offer, been notified of any delinquent taxes for which
the liability remains unsatisfied; and
(E) Have [square] have not [square] received notice of a tax lien
filed against them for which the liability remains unsatisfied or the
lien has not been released.
* * * * *
7. Amend section 52.212-3 by--
a. Revising the date of the clause;
b. Adding to paragraph (h)(2) ``violating tax laws, failing to pay
taxes'', after ``tax evasion''; and
c. Adding paragraphs (h)(4) and (h)(5).
The revised and added text read as follows:
52.212-3 Offeror Representations and Certifications-Commercial Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS-COMMERCIAL ITEMS (DATE)
* * * * *
(h) * * *
(4) [square] Have [square] have not, within a three-year period
preceeding this offer, been notified of any delinquent taxes for which
the liability remains unsatisfied; and
(5) [square] Have [square] have not received notice of a tax lien
filed against them for which the liability remains unsatisfied or the
lien has not been released.
* * * * *
[FR Doc. 07-1558 Filed 3-29-07; 8:45 am]
BILLING CODE 6820-EP-S