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Federal Register / Vol. 75, No. 238 / Monday, December 13, 20 - page 3 / 3

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Federal Register / Vol. 75

, No. 238 / Monday, December 13, 2010 / Rules and Regulations

77741

item, with a contractor that has been debarred, suspended, or proposed for debarment unless there is a compelling reason to do so. If a contractor intends to subcontract, other than a subcontract for a commercially available off-the- shelf item, with a party that is debarred, suspended, or proposed for debarment as evidenced by the parties’ inclusion in the EPLS (see 9.404), a corporate officer or designee of the contractor is required by operation of the clause at 52.209–6, Protecting the Government’s Interests when Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment, to notify the contracting officer, in writing, before entering into such subcontract. For contracts for the acquisition of commercial items, the notification requirement applies only for first-tier subcontracts. For all other contracts, the notification requirement applies to subcontracts at any tier. The notice must provide the following:

*****

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

  • 3. Amend section 52.209–6 by—

  • a. Revising the date of the clause;

  • b. Redesignating paragraphs (a)

through (c) as paragraphs (b) through (d), respectively; and adding a new paragraph (a);

  • c. Revising the newly designated

paragraphs (b), (c), and (d) introductory text; and

  • d. Adding paragraph (e).

The revised and added text reads as follows:

52.209–6 Protecting the Government’s Interest When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment.

*****

Protecting the Government’s Interest When Subcontracting With Contractors Debarred, Suspended, or Proposed for Debarment (DEC 2010)

(a) Definition. Commercially available off- the-shelf (COTS) item, as used in this clause—

(1) Means any item of supply (including construction material) that is—

(i) A commercial item (as defined in paragraph (1) of the definition in FAR 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702), such as agricultural products and petroleum products.

(b) The Government suspends or debars Contractors to protect the Government’s

interests. Other than a subcontract for a commercially available off-the-shelf item, the Contractor shall not enter into any subcontract, in excess of $30,000 with a Contractor that is debarred, suspended, or proposed for debarment by any executive agency unless there is a compelling reason to do so.

(c) The Contractor shall require each proposed subcontractor whose subcontract will exceed $30,000, other than a subcontractor providing a commercially available off-the-shelf item, to disclose to the Contractor, in writing, whether as of the time of award of the subcontract, the subcontractor, or its principals, is or is not debarred, suspended, or proposed for debarment by the Federal Government.

(d) A corporate officer or a designee of the Contractor shall notify the Contracting Officer, in writing, before entering into a subcontract with a party (other than a subcontractor providing a commercially available off-the-shelf item) that is debarred, suspended, or proposed for debarment (see FAR 9.404 for information on the Excluded Parties List System). The notice must include the following:

*****

(e) Subcontracts. Unless this is a contract for the acquisition of commercial items, the Contractor shall include the requirements of this clause, including this paragraph (e) (appropriately modified for the identification of the parties), in each subcontract that—

  • (1)

    Exceeds $30,000 in value; and

  • (2)

    Is not a subcontract for commercially

available off-the-shelf items.

(End of clause)

  • 4. Amend section 52.212–5 by—

  • a. Revising the date of the clause; and

  • b. Redesignating paragraphs (b)(6)

through (b)(44) as paragraphs (b)(7) through (b)(45), respectively; and adding a new paragraph (b)(6).

The revised and added text reads as follows:

52.212–5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items.

*****

Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items (DEC 2010)

  • (b)

    * * *

    • (6)

      52.209–6, Protecting the Government’s

Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (DEC 2010) (31 U.S.C. 6101 note). (Applies to contracts over $30,000). (Not applicable to subcontracts for the acquisition of commercially available off- the-shelf items).

*****

  • 5. Amend section 52.213–4 by

revising the date of the clause and paragraph (b)(2)(i) to read as follows:

52.213–4 Terms and Conditions— Simplified Acquisitions (Other Than Commercial Items).

*****

Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items) (DEC 2010)

  • (b)

    * * *

    • (2)

      * * *

  • (i)

    52.209–6, Protecting the Government’s

Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (DEC 2010) (Applies to contracts over $30,000). (Not applicable to subcontracts for the acquisition of commercially available off-the-shelf items).

*****

[FR Doc. 2010–30565 Filed 12–10–10; 8:45 am] BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 15, 31, and 52

[FAC 2005–47; FAR Case 2008–031; Item VI; Docket 2009–0034, Sequence 2]

RIN 9000–AL27

Federal Acquisition Regulation; Limitation on Pass-Through Charges

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

ACTION: Final rule.

SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have adopted as final, with changes, the interim rule amending the Federal Acquisition Regulation (FAR) to implement section 866 of the Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009, which applies to executive agencies other than DoD. DoD is subject to section 852 of the John Warner NDAA for FY 2007, which is also implemented in this final rule. Section 866 requires the Councils to amend the FAR, and section 852 requires the Secretary of Defense to prescribe regulations to minimize excessive pass-through charges by contractors from subcontractors, or from tiers of subcontractors, that add no or negligible value, and to ensure that neither a contractor nor a subcontractor receives indirect costs or profit/fee (i.e., pass- through charges) on work performed by

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