Federal Acquisition Regulations:

Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)

Rules and Regulations

Pages 68037-68039

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-27788

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 25

FAC 2005-54; FAR Case 2009-041; Item VII; Docket 2010-0105, Sequence 1

RIN 9000-AL65

Federal Acquisition Regulation; Sudan Waiver Process

AGENCIES: Department of Defense (DoD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the

Federal Acquisition Regulation (FAR) to revise the prohibition on contracting with entities that conduct restricted business operations in Sudan. This rule adds specific criteria including foreign policy aspects that an agency must address when applying to the President or his appointed designee for a waiver of the prohibition on awarding a contract to a contractor that conducts restricted business operations in Sudan. The rule also describes the consultation process that will be used by the Office of Federal Procurement Policy (OFPP) in support of the waiver request review.

DATES: Effective Date: December 2, 2011.

FOR FURTHER INFORMATION CONTACT: Cecelia L. Davis, Procurement Analyst, at (202) 219-0202, for clarification of content. For information pertaining to status or publication schedules, contact the FAR

Secretariat at (202) 501-4755. Please cite FAC 2005-54, FAR Case 2009- 041.

SUPPLEMENTARY INFORMATION:

1. Background

   DoD, GSA, and NASA published a proposed rule in the Federal

   Register at 75 FR 62069 on October 7, 2010, to revise FAR 25.702,

   Prohibition on contracting with entities that conduct restricted business operations in Sudan, to add specific criteria including foreign policy aspects that an agency must address when applying to the

   President or his appointed designee for a waiver of the prohibition on awarding a contract to a contractor that conducts restricted business operations in Sudan. The rule also describes the consultation process that will be used by OFPP in support of the waiver review. No comments were received by the close of

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   the public comment period on December 6, 2010.

   DoD, GSA, and NASA published a final rule, FAR Case 2008-004,

   Prohibition on Restricted Business Operations in Sudan and Imports from

   Burma, in the Federal Register at 74 FR 40463 on August 11, 2009, amending the FAR to implement section 6 of the Sudan Accountability and

   Divestment Act of 2007 (the Act), Public Law 110-174.

   Section 6(a) of the Act requires that each contract entered into by an Executive agency include a certification that the contractor does not conduct certain business operations in Sudan as described in section 3(d) of the Act. Pursuant to section 6(c), the President may waive this certification requirement on a case-by-case basis if the

   President determines and certifies to the appropriate congressional committees that it is in the national interest to do so.

   Section 6 of the Act was implemented in the FAR but did not include a waiver consultation process and specific criteria for the waiver request. With the addition of these changes, the FAR will provide consistent guidance on specific criteria that must be included in the waiver request for consideration, and establish a consultation process to ensure all waiver requests are reviewed by the appropriate agency experts.

   OFPP will be required to consult with the President's National

   Security Council, Office of African Affairs and the Department of State

   Sudan Office and Sanctions Office on foreign policy matters relevant to the waiver request and include this information in the recommendation to the President. All waiver requests must clearly explain why the product or service must be procured from the offeror for which the waiver is requested and why it is in the national interest to waive the statutory prohibition against contracting with an offeror that conducts restricted business operations in Sudan. In addition, the waiver request must address any humanitarian efforts engaged in by the offeror, the human rights impact of doing business with that offeror, and the extent of the offeror's business operations in Sudan. All of the information required to be included in the waiver request will be considered in determining whether to recommend that the President waive the prohibition.

   Additionally, individual and class waiver requests will be considered for a specific contract or class of contracts, as long as the waiver request has been reviewed and cleared by the agency head prior to submitting it to OFPP and the request includes the appropriate waiver information specified at FAR 25.702-4(c)(3). However, a waiver will not be issued for an indefinite period of time, and may be cancelled, if warranted.

   In accordance with section 6 of the Act, the Administrator of OFPP is required to submit semiannual reports, on April 15th and October 15th, to Congress, on waivers approved by the President.

2. 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 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.

3. 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 does not impose any additional requirements on small businesses.

4. Paperwork Reduction Act

   The final rule does not contain any information collection requirements that require the approval of the Office of Management and

   Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

   List of Subjects in 48 CFR Part 25

   Government procurement.

   Dated: October 21, 2011.

   Laura Auletta,

   Acting Director, Office of Governmentwide Acquisition Policy, Office of

   Acquisition Policy, Office of Governmentwide Policy.

   Therefore, DoD, GSA, and NASA amend 48 CFR part 25 as set forth below:

   PART 25--FOREIGN ACQUISITION 0 1. The authority citation for 48 CFR part 25 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). 0 2. Amend section 25.702-4 by revising paragraph (b); and adding paragraphs (c) and (d) to read as follows: 25.702-4 Waiver.

   * * * * *

   (b) An agency seeking waiver of the requirement shall submit the request to the Administrator of the Office of Federal Procurement

   Policy (OFPP), allowing sufficient time for review and approval. Upon receipt of the waiver request, OFPP shall consult with the President's

   National Security Council, Office of African Affairs, and the

   Department of State Sudan Office and Sanctions Office to assess foreign policy aspects of making a national interest recommendation.

   (c) Agencies may request a waiver on an individual or class basis; however, waivers are not indefinite and can be cancelled if warranted.

   (1) A class waiver may be requested only when the class of supplies is not available from any other source and it is in the national interest.

   (2) Prior to submitting the waiver request, the request must be reviewed and cleared by the agency head.

   (3) All waiver requests must include the following information:

   (i) Agency name, complete mailing address, and point of contact name, telephone number, and email address;

   (ii) Offeror's name, complete mailing address, and point of contact name, telephone number, and email address;

   (iii) Description/nature of product or service;

   (iv) The total cost and length of the contract;

   (v) Justification, with market research demonstrating that no other offeror can provide the product or service and stating why the product or service must be procured from this offeror, as well as why it is in the national interest for the President to waive the prohibition on contracting with this offeror that conducts restricted business operations in Sudan, including consideration of foreign policy aspects identified in consultation(s) pursuant to 25.702-4(b);

   (vi) Documentation regarding the offeror's past performance and integrity (see the Past Performance Information Retrieval System including the Federal Awardee Performance Information and Integrity

   System at http://www.ppirs.gov and any other relevant information);

   (vii) Information regarding the offeror's relationship or connection with

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   other firms that conduct prohibited business operations in Sudan; and

   (viii) Any humanitarian efforts engaged in by the offeror, the human rights impact of doing business with the offeror for which the waiver is requested, and the extent of the offeror's business operations in Sudan.

   (d) The consultation in 25.702-4(b) and the information in 25.702- 4(c)(3) will be considered in determining whether to recommend that the

   President waive the requirement of subsection 25.702-2. In accordance with section 6(c) of the Sudan Accountability and Divestment Act of 2007, OFPP will semiannually submit a report to Congress, on April 15th and October 15th, on the waivers granted.

   FR Doc. 2011-27788 Filed 11-1-11; 8:45 am

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