Proposed Rule2021-13740
Department of State Acquisition Regulation; Access to Contractor Records
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 2, 2021
Issuing agencies
State Department
Abstract
The Department of State (DOS) is proposing an amendment to the Department of State Acquisition Regulation (DOSAR), to add a new contract clause relating to Department requests for examination of contractor records.
Full Text
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<title>Federal Register, Volume 86 Issue 125 (Friday, July 2, 2021)</title>
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[Federal Register Volume 86, Number 125 (Friday, July 2, 2021)]
[Proposed Rules]
[Pages 35257-35258]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13740]
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DEPARTMENT OF STATE
48 CFR Parts 615 and 652
[Public Notice: 10574]
RIN 1400-AE60
Department of State Acquisition Regulation; Access to Contractor
Records
AGENCY: Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State (DOS) is proposing an amendment to the
Department of State Acquisition Regulation (DOSAR), to add a new
contract clause relating to Department requests for examination of
contractor records.
DATES: The Department of State will accept comments on this proposed
rule until August 31, 2021.
ADDRESSES: You may submit comments by any of the following methods:
<bullet> E-mail: <a href="/cdn-cgi/l/email-protection#fabd889b839b9eba898e9b8e9fd49d958c"><span class="__cf_email__" data-cfemail="a0e7d2c1d9c1c4e0d3d4c1d4c58ec7cfd6">[email protected]</span></a>. You must include the RIN in the
subject line of your message.
<bullet> Mail (paper or CD-ROM submissions): Ms. Annette Gray,
Policy Division, Office of the Procurement Executive, A/OPE, 2201 C
Street NW, Suite 3200, State Annex Number 15, Washington, DC 20520.
<bullet> Persons with access to the internet may view this interim
rule and submit comments by visiting: <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and
searching for docket number DOS-2021-0007.
FOR FURTHER INFORMATION CONTACT: Ms. Tandra Jones, Office of the
Procurement Executive, A/OPE, 1735 North Lynn Street, Room 442,
Arlington, VA 22209. Telephone 703-875-6643.
SUPPLEMENTARY INFORMATION: The Department proposes to add 48 CFR part
615, section 615.209-70, Examination of Records, and 48 CFR part 652,
section 652.209-70, Examination of Records, to the Department of State
Acquisition Regulation (DOSAR).
What is the authority for this proposed rule?
Title 41 of the U.S. Code, section 4706, provides that the head of
an executive agency, acting through an authorized representative, may,
for the purpose of evaluating the accuracy, completeness, and currency
of certified cost or pricing data required to be submitted pursuant to
41 U.S.C. chapter 35 with respect to a contract or subcontract, examine
all records of the contractor or subcontractor related to:
(A) The proposal for the contract or subcontract;
(B) the discussions conducted on the proposal;
(C) pricing of the contract or subcontract; or
(D) performance of the contract or subcontract.
The Federal Acquisition Regulation (FAR), 48 CFR 15.209(b),
Solicitation provisions and contract clauses, states (in summary) that,
when contracting by negotiation, except as provided in section
15.209(b)(2),\1\ the contracting officer shall insert the clause at
section 52.215-2, Audit and Records-Negotiation, in solicitations and
contracts except those for: (1) Acquisitions not exceeding the
simplified acquisition threshold; (2) The acquisition of utility
services at rates not exceeding those established to apply uniformly to
the general public, plus any applicable reasonable connection
[[Page 35258]]
charge; or (3) The acquisition of commercial items exempted under
section 15.403-1.
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\1\ Paragraph (b)(2) relates to contracts using funds
appropriated or otherwise made available by the American Recovery
and Reinvestment Act of 2009 (Pub. L. 111-5).
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Why is the Department publishing this proposed rule?
The DOSAR implements the FAR (and therefore, the statute, 41 U.S.C.
4706) for the Department of State.\2\ The Department has determined,
after a review of the existing regulations, that further clarity is
required regarding implementation of 41 U.S.C. 4706 as it relates to
contracts other than contracts by negotiation (which, as noted, are
already covered by FAR section 15.209(b)).
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\2\ 48 CFR 601.303.
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For these reasons, the Department proposes to add section 615.209-
70 to the DOSAR, requiring the contracting officer to insert a new
clause, Examination of Records (proposed section 652.215-70), in all
solicitations and contracts other than contracts by negotiation.
Regulatory Findings
Administrative Procedure Act
In accordance with the provisions of the Administrative Procedure
Act, the Department is publishing this rulemaking as a proposed rule,
and providing 60 days for public comment.
Regulatory Flexibility Act
The Department of State, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by
approving it, certifies that this proposed rule will not have a
significant economic impact on small entities. This determination is
based on the fact that this proposed rulemaking clarifies within the
DOSAR the authority of the Department to examine contractor records,
which is already provided by statute.
Unfunded Mandates Act of 1995
This proposed rule will not result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any year and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Act of 1995.
Executive Orders 12866 and 13563
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
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
emphasized the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. The
Department of State does not consider this proposed rule to be an
``economically significant regulatory action'' under Executive Order
12866.
In addition, the Department is exempt from Executive Order 12866
except to the extent that it is promulgating regulations in conjunction
with a domestic agency that are significant regulatory actions. The
Department has nevertheless reviewed the regulation to ensure its
consistency with the regulatory philosophy and principles set forth in
the Executive Orders and finds that the benefits of this proposed rule
outweigh any costs, which the Department assesses to be minimal. As
noted, this proposed rule does not impose any new requirements on
contractors.
Executive Order 13132
The proposed rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this proposed
rulemaking will not have sufficient federalism implications to require
consultations or warrant the preparation of a federalism summary impact
statement.
Executive Order 13175
The Department has determined that this proposed rulemaking will
not have tribal implications, will not impose substantial direct
compliance costs on Indian tribal governments, and will not pre-empt
tribal law. Accordingly, the requirements of Executive Order 13175 do
not apply to this proposed rulemaking.
Paperwork Reduction Act
This proposed rule does not add or revise any information
collection requirements subject to the Paperwork Reduction Act, 44
U.S.C. chapter 35.
List of Subjects in 48 CFR Parts 615 and 652
Administrative practice and procedure, Government procurement.
For the reasons stated in the preamble, the Department of State
proposes to amend 48 CFR chapter 6 as follows:
PART 615--CONTRACTING BY NEGOTIATION
0
1. The authority citation for 48 CFR part 615 continues to read as
follows:
Authority: 22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter
1.
0
2. Section 615.209-70 is added to read as follows:
615.209-70 Examination of records.
The contracting officer shall insert the clause at 652.215-70,
Examination of Records, in all solicitations and contracts other than
those described in Federal Acquisition Regulation 15.209(b)(1).
PART 652--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. The authority citation for 48 CFR part 652 continues to read as
follows:
Authority: 22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter
1.
0
4. Section 652.215-70 is added to read as follows:
652.215-70 Examination of Records.
As prescribed in 615.209-70, insert the following clause.
Examination of Records ([ABBREVIATED MONTH AND YEAR 30 DAYS AFTER DATE
OF PUBLICATION OF FINAL RULE])
(a) With respect to matters related to this contract or a
subcontract hereunder, the Department of State Office of the
Inspector General, or an authorized representative, shall have upon
request:
(1) Complete, prompt, and free access to all Contractor and
Subcontractor files (in any format), documents, records, data,
premises, and employees, except as limited by law; and
(2) The right to interview any current Contractor and
Subcontractor personnel, individually and directly, with respect to
such matters.
(b) This clause may not be construed to require the contractor
or any subcontractor to create or maintain any record that the
contractor or subcontractor does not maintain in the ordinary course
of business or pursuant to a provision of law.
(c) The Contractor shall insert a clause containing all the
terms of this clause, including this paragraph (c), in all
subcontracts under this contract other than acquisitions described
in Federal Acquisition Regulation 15.209(b)(1).
(End of clause)
Zachary A. Parker,
Director, U.S. Department of State.
[FR Doc. 2021-13740 Filed 7-1-21; 8:45 am]
BILLING CODE 4710-24-P
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