Rule2022-00073
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
January 10, 2022
Effective
February 9, 2022
Issuing agencies
State Department
Abstract
The Department of State (the Department) is finalizing 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 87 Issue 6 (Monday, January 10, 2022)</title>
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[Federal Register Volume 87, Number 6 (Monday, January 10, 2022)]
[Rules and Regulations]
[Pages 1081-1082]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00073]
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DEPARTMENT OF STATE
48 CFR Parts 615 and 652
[Public Notice: 11611]
RIN 1400-AE60
Acquisition Regulation: Access to Contractor Records
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State (the Department) is finalizing 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: This final rule is effective February 9, 2022.
FOR FURTHER INFORMATION CONTACT: Tandra A. Jones, Senior Procurement,
Email: <a href="/cdn-cgi/l/email-protection#4d0c2e3c38243e24392422231d2221242e340d3e392c3928632a223b"><span class="__cf_email__" data-cfemail="cb8aa8babea2b8a2bfa2a4a59ba4a7a2a8b28bb8bfaabfaee5aca4bd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On July 2, 2021, the Department published a
notice of proposed rulemaking, proposing 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). 86 FR 35257. The Department provided 60
days for public comment. No comments were received. Accordingly, the
Department is publishing this final rule.
What is the authority for this 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:
<bullet> The proposal for the contract or subcontract;
<bullet> the discussions conducted on the proposal;
<bullet> pricing of the contract or subcontract; or
<bullet> 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 paragraph (b)(2)
of Sec. 15.209,\1\ the contracting officer shall insert the clause at
Sec. 52.215-2, Audit and Records-Negotiation, in solicitations and
contracts except those for
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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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<bullet> Acquisitions not exceeding the simplified acquisition
threshold;
[cir] The acquisition of utility services at rates not exceeding
those established to apply uniformly to the general public, plus any
applicable reasonable connection charge; or
[cir] The acquisition of commercial items exempted under Sec.
15.403-1.
[[Page 1082]]
Why is the Department publishing this 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 Sec. 15.209(b)).
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\2\ 48 CFR 601.303.
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For these reasons, the Department is adding Sec. 615.209-70 to the
DOSAR, requiring the contracting officer to insert a new clause,
Examination of Records (proposed Sec. 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 published this rulemaking as a proposed rule, and
provided 60 days for public comment. This final rule will be effective
30 days after publication.
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 rule will not have a significant
economic impact on small entities. This determination is based on the
fact that this rulemaking clarifies within the DOSAR the authority of
the Department to examine contractor records, which is already provided
by statute.
Congressional Review Act
This rule is not a major rule as defined by 5 U.S.C. 804(2).
Unfunded Mandates Act of 1995
This 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 has 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 rule outweigh any costs,
which the Department assesses to be minimal. As noted, this rule does
not impose any new requirements on contractors. The Office of
Information and Regulatory Affairs has determined that this regulation
is ``not significant'' under E.O. 12866.
Executive Order 13132
This 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 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 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 rulemaking.
Paperwork Reduction Act
This 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.
Accordingly, the Department of State amends 48 CFR chapter 6 as
follows:
PART 615--CONTRACTING BY NEGOTIATION
0
1. The authority citation for 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 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
(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)
Michael W. Derrios,
Senior Procurement Executive, Office of the Procurement Executive, U.S.
Department of State.
[FR Doc. 2022-00073 Filed 1-7-22; 8:45 am]
BILLING CODE 4710-24-P
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