FAR Case 2009-009; American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Reporting Requirements

Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
8.404

Use of Federal Supply Schedules.

(a) General.* * * Therefore, when
establishing a BPA (as authorized by
13.303–2(c)(3)), or placing orders under
Federal Supply Schedule contracts
using the procedures of 8.405, ordering
activities shall not seek competition
outside of the Federal Supply Schedules
or synopsize the requirement; but see
paragraph (e) of this section for orders
(including orders issued under BPAs)
funded in whole or in part by the
American Recovery and Reinvestment
Act of 2009 (Pub. L. 111–5).
*
*
*
*
*
(e) Publicizing contract actions
funded in whole or in part by the
American Recovery and Reinvestment
Act of 2009 (Pub. L. 111–5):
(1) Notices of proposed MAS orders
(including orders issued under BPAs)
that are for ‘‘informational purposes
only’’ exceeding $25,000 shall follow
the procedures in 5.704 for posting
orders.
(2) Award notices for MAS orders
(including orders issued under BPAs)
shall follow the procedures in 5.705.
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
5. Amend section 13.105 by adding
paragraph (d) to read as follows:

■

13.105 Synopsis and posting
requirements.

*

*
*
*
*
(d) When publicizing contract actions
funded in whole or in part by the
American Recovery and Reinvestment
Act of 2009 (Pub. L. 111–5):
(1) Notices of proposed contract
actions shall follow the procedures in
5.704 for posting orders.
(2) Award notices shall follow the
procedures in 5.705.
PART 16—TYPES OF CONTRACTS
6. Amend section 16.505 by revising
paragraph (a)(1); and adding paragraph
(a)(10) to read as follows:

■

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16.505

Ordering.

(a) * * *
(1) In general, the contracting officer
does not synopsize orders under
indefinite-delivery contracts; but see
16.505(a)(10) for orders funded in whole
or in part by the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111–
5).
*
*
*
*
*
(10) Publicize orders funded in whole
or in part by the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111–
5) as follows:

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(i) Notices of proposed orders shall
follow the procedures in 5.704 for
posting orders.
(ii) Award notices for orders shall
follow the procedures in 5.705.
*
*
*
*
*
[FR Doc. E9–7019 Filed 3–30–09; 8:45 am]
BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 4 and 52
[FAC 2005–32; FAR Case 2009–009; Item
IV; Docket 2009–0011, Sequence 1]
RIN 9000–AL21

Federal Acquisition Regulation; FAR
Case 2009–009, American Recovery
and Reinvestment Act of 2009 (the
Recovery Act)—Reporting
Requirements
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council (the
Councils) are issuing an interim rule
amending the Federal Acquisition
Regulation (FAR) to implement section
1512 of Division A of the American
Recovery and Reinvestment Act of 2009,
which requires contractors to report on
their use of Recovery Act funds.
DATES: Effective Date: March 31, 2009
Applicability Date: The rule applies to
solicitations issued and contracts
awarded on or after the effective date of
this rule. Contracting officers shall
modify, on a bilateral basis, in
accordance with FAR 1.108(d)(3),
existing contracts to include the FAR
clause if Recovery Act funds will be
used. In the event that a contractor
refuses to accept such a modification,
the contractor will not be eligible for
receipt of Recovery Act funds.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before June 1,
2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–32, FAR case
2009–009, by any of the following
methods:

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14639

• Regulations.gov: http://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2009–009’’ under
the heading ‘‘Comment or Submission’’.
Select the link ‘‘Send a Comment or
Submission’’ that corresponds with FAR
Case 2009–009. Follow the instructions
provided to complete the ‘‘Public
Comment and Submission Form’’.
Please include your name, company
name (if any), and ‘‘FAR Case 2009–
009’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, FAR Secretariat (VPR),
1800 F Street, NW., Room 4041, Attn:
Hada Flowers, Washington, DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–32, FAR case
2009–009, 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.
Ernest Woodson, Procurement Analyst,
at (202) 501–3775 for clarification of
content. Please cite FAC 2005–32, FAR
case 2009–009. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
On February 17, 2009, the President
signed Public Law 111–5, the American
Recovery and Reinvestment Act of 2009
(the ‘‘Recovery Act’’), including a
number of provisions to be
implemented in Federal Government
contracts. This interim rule implements
section 1512, which is also known as
the ‘‘Jobs Accountability Act.’’
Subsection (c) of section 1512 requires
contractors that receive awards (or
modifications to existing awards)
funded, in whole or in part, by the
Recovery Act to report quarterly on the
use of the funds.
This FAR case adds a new subpart
4.15, and a new clause, 52.204–11.
Contracting officers must include the
new clause in solicitations and contracts
funded in whole or in part with
Recovery Act funds, except classified
solicitations and contracts. Commercial
item contracts and Commercially
Available Off-The-Shelf (COTS) item
contracts are covered, as well as actions
under the simplified acquisition
threshold.
Contracting officers who obligate
Recovery Act funds on existing
contracts or orders must modify those
contracts to add the new clause.

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Contracting officers shall ensure that the
contractor complies with the reporting
requirements of the new clause.
Contracting officers are not responsible
for validating report content, only that
a report was submitted as required. The
online reporting tool will allow the
contracting officer to monitor this as a
matter of contract performance.
Reports from contractors for all work
funded, in whole or in part, by the
Recovery Act, and for which an invoice
is submitted prior to June 30, 2009, are
due no later than July 10, 2009.
Thereafter, reports shall be submitted no
later than the 10th day after the end of
each calendar quarter. Contractors will
report the information, using the online
reporting tool available at http://
www.FederalReporting.gov, using
instructions at that Web site. The online
reporting tool is being developed for use
by the July 10th timeframe. The data
elements to be reported are outlined in
the clause 52.204–11, in paragraph (d).
The Government intends to prepopulate as many data elements as
possible to reduce the burden on
contractors and first-tier subcontractors
by using information available in other
Government systems. For instance, the
Government is considering prepopulating congressional districts based
on nine-digit zip codes, funding agency,
North American Industry Classification
System (NAICS) code, and parent
DUNS.
While Section 1512(c)(4) requires
reporting on all Federal Financial
Accountability and Transparency Act
(FFATA) data elements, including the
compensation information, it limits the
reporting to first-tier subcontractors that
meet the applicability requirements.
The FAR clause requires this
compensation disclosure for prime
contractors, because to exclude prime
contractors while requiring disclosure
for first-tier subcontractors would be
unsupportable given the transparency
goals of both FFATA and the Recovery
Act.
B. Determinations
The Councils provide the following
determinations with respect to the rule’s
applicability to contracts and
subcontracts in amounts not greater
than the simplified acquisition
threshold, commercial items, and
commercially available off-the-shelf
(COTS) items.
1. Applicability to contracts at or
below the simplified acquisition
threshold. Section 4101 of Public Law
103–355, the Federal Acquisition
Streamlining Act (FASA) (41 U.S.C.
429), governs the applicability of laws to
contracts or subcontracts in amounts not

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greater than the simplified acquisition
threshold. It is intended to limit the
applicability of laws to them. FASA
provides that if a provision of law
contains criminal or civil penalties, or if
the Federal Acquisition Regulatory
Council makes a written determination
that it is not in the best interest of the
Federal Government to exempt contracts
or subcontracts at or below the
simplified acquisition threshold, the
law will apply to them. Therefore, given
section 1512 of the Recovery Act which
requires that prime contractors report
information on their use of Recovery
funds, and the initial implementing
guidance for the Recovery Act issued on
February 18, 2009 by the Director of the
Office of Management and Budget
(OMB) committing to an unprecedented
level of transparency and accountability
for taxpayer dollars, the FAR Council
has determined that it is in the best
interest of the Federal Government to
apply this rule to contracts or
subcontracts at or below the simplified
acquisition threshold, as defined at
2.101.
2. Applicability to Commercial Item
contracts. Section 8003 of Public Law
103–355, the Federal Acquisition
Streamlining Act (FASA) (41 U.S.C.
430), governs the applicability of laws to
commercial items, and is intended to
limit the applicability of laws to
commercial items. FASA provides that
if a provision of law contains criminal
or civil penalties, or if the Federal
Acquisition Regulatory Council makes a
written determination that it is not in
the best interest of the Federal
Government to exempt commercial item
contracts, the provision of law will
apply to contracts for commercial items.
The same applies for subcontracts for
commercial items.
Therefore, given section 1512, of the
Recovery Act, which requires that prime
contractors report information on their
use of recovery funds, and the initial
implementing guidance for the Recovery
Act issued on February 18, 2009 by the
Director of the Office of Management
and Budget (OMB) committing to an
unprecedented level of transparency
and accountability for taxpayer dollars,
the FAR Council has determined that it
is in the best interest of the Federal
Government to apply the rule to
commercial items, as defined at 2.101,
both at the prime and subcontract
levels.
3. Applicability to Commercially
Available Off-The-Shelf (COTS) item
contracts. Section 4203 of Public Law
104–106, the Clinger-Cohen Act of 1996
(41 U.S.C. 431), governs the
applicability of laws to the procurement
of commercially available off-the-shelf

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(COTS) items, and is intended to limit
the applicability of laws to them.
Clinger-Cohen provides that if a
provision of law contains criminal or
civil penalties, or if the Administrator
for Federal Procurement Policy makes a
written determination that it is not in
the best interest of the Federal
Government to exempt COTS item
contracts, the provision of law will
apply. The same applies for
subcontracts for COTS items.
Therefore, given section 1512, of the
Recovery Act which requires that prime
contractors report information on their
use of recovery funds, and the initial
implementing guidance for the Recovery
Act issued on February 18, 2009 by the
Director of the Office of Management
and Budget (OMB) committing to an
unprecedented level of transparency
and accountability for taxpayer dollars,
the Administrator, Office of the Federal
Procurement Policy, has determined
that it is in the best interest of the
Federal Government to apply the rule to
Commercially Available Off-The-Shelf
(COTS) item contracts and subcontracts,
as defined at FAR 2.101.
C. Request for Public Comments
The Councils ask for public comments
on the interim rule, and the following
additional issues:
1. The statute requires a description of
the work (implemented at 52.204–
11(d)(5)). Should the Government
provide a list of broad categories of
work under the Recovery Act from
which the contractor would select and,
if so, what should these be?
2. The definitions of ‘‘jobs created’’
and ‘‘jobs retained’’ are currently based
on a conversion of part-time or
temporary jobs into ‘‘full-time
equivalent’’ (FTE) jobs. In order to do
such a conversion, these part-time hours
must be divided by the number of hours
in a full-time schedule. This interim
rule leaves the definition of full-time
schedule to each individual company’s
discretion based on its existing
practices. With respect to the
methodology described in the interim
rule for estimating jobs created or
retained:
—Is the use of FTE and the description
provided consistent with existing
business practices and systems?
—Is a standardized methodology based
on FTE necessary or do contractors
have existing practices that
adequately address other than fulltime jobs to avoid inflating estimated
numbers for jobs created and jobs
retained? Should the Government
allow contractors to use any method
consistent with their existing practice
as long as the contractor provides an

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explanation of the methodology,
including a description of how parttime and temporary employees are
addressed?
—If the Government were to standardize
the number of hours in a ‘‘full-time
schedule,’’ would this increase the
burden of reporting on jobs created or
retained?
3. If the Government were to require
companies to separately invoice for all
supplies or services funded by the
Recovery Act, what challenges would
this pose? Are there any benefits?
4. Is there information not
customarily provided that would make
it easier for companies to segregate their
invoices to separately identify items
funded by the Recovery Act?
5. Are there challenges to obtaining
the information required from first-tier
subcontractors? If so, how could the rule
be changed to ease the submission of
this information from both a prime
contractor and subcontractor
perspective?
6. Does the definition of ‘‘Total
compensation’’ used in the clause
provide sufficient clarity? If not, what
specifically should be clarified?
7. Would it be useful to provide an
Alternate clause that would allow
agencies to identify meaningful distinct
‘‘projects’’ within the contract for the
purpose of requiring the contractor to
report employment impact and progress
by ‘‘project’’ rather than for the contract
as a whole? For example, if the contract
called for work in distinct geographic
areas, the report might provide more
meaningful information if the contractor
were to report employment impact and
progress separately by geographic area.
This would not require individual
reports but rather separate sections
within the quarterly report.
8. Currently, this rule requires
contractors to report on invoiced
amounts because the Government
assumed that it would be extremely
difficult for the contractor employee
responsible for report submission, to
report on ‘‘receipt of funds.’’ Would a
contractor be able to separately identify
when Recovery Act funds were received
and be able to identify the payment to
particular deliverables? How difficult
would this be to track and report on a
quarterly basis?
This is a significant regulatory action
and, therefore, was subject to Office of
Management and Budget (OMB) 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.

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D. Regulatory Flexibility Act
This interim rule may 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 it requires contractors to report
on their use of Recovery Act funds. An
Initial Regulatory Flexibility Analysis
has been prepared and the results of the
analysis show that the direct cost of this
rule on an average cost-per-contractor
basis does not appear to rise to the level
of being economically significant (i.e.
$100,000,000); however, the Councils
request comments on this finding.
Therefore, the Councils have prepared
an Initial Regulatory Flexibility
Analysis (IRFA) for public comment
that is summarized as follows:
This Initial Regulatory Flexibility Analysis
has been prepared consistent with 5 U.S.C.
603.
1. Reasons for the action.
This action implements section 1512 of the
American Recovery and Reinvestment Act of
2009 (Recovery Act), which requires
contractors to report quarterly on their use of
Recovery Act funds.
2. Objectives of, and legal basis for, the
rule.
The objective of the Recovery Act is to
create jobs, restore economic growth, and
strengthen America’s middle class through
measures that modernize the nation’s
infrastructure, enhance America’s energy
independence, expand educational
opportunities, preserve and improve
affordable health care, provide tax relief,
protect those in greatest need, and provide
for other purposes. This rule implements
section 1512 of the Recovery Act which
requires contractors, as a condition of receipt
of funds, to report quarterly on their use of
those funds. These reports will be made
available to the public. The Recovery Act is
designed to provide unprecedented
transparency to the American taxpayer.
3. Description and estimate of the number
of small entities to which the rule will apply.
The rule imposes a clause in any award
document funded by the Recovery Act,
requiring the contractor to publicly disclose
information related to the use of funds and
specific information about first-tier
subcontract awards. This clause requires
contractors to report on use of Recovery Act
funds. The clause imposes a public reporting
burden on prime contractors and, in a more
limited way, on their first-tier subcontractors.
According to the Federal Procurement Data
System (FPDS), there are 129,331 active and
unique prime Federal contractors. The
estimate for the number of active and unique
prime federal contractors that will participate
in awards funded by the Recovery Act is
20,013, of which 4,003 or 20 percent are
estimated to be small businesses. It is also
noted that this is 20 percent of prime
contractors, which should not be confused
with the 23 percent small business
contracting goal which is based on dollars
and that continues to apply to both Recovery

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Act spending and agencies’ ongoing
procurement spending.
The number of first-tier subcontractors
estimated to participate in Recovery Act
awards is 60,039 or three times the number
of prime contractors. Of these 60,039
Recovery Act first-tier subcontractors, it is
estimated that 25 percent, or 15,010, will be
small businesses.
Based on the above, the estimated total
number of small businesses, prime and
subcontractors, to which this rule will apply
is 19,013 and the estimated total number of
other than small businesses to which this
rule will apply is 61,039.
4. Description of projected reporting,
recordkeeping, and other compliance
requirements of the rule, including an
estimate of the classes of small entities which
will be subject to the requirement and the
type of professional skills necessary for
preparation of the report or record.
The rule requires Federal prime
contractors, both small and other than small
businesses, to report quarterly on their use of
funds received under the Recovery Act. The
rule applies to all Federal contractors
regardless of size or business ownership.
Such a report would probably be prepared by
a company contract administrator or contract
manager or a company subcontract
administrator. The information required in
the report is primarily information that
companies would maintain for their own
business purposes including, but not limited
to, contract or other award number, the dollar
amount of invoices, the supplies or services
delivered, a broad assessment of progress
towards completion, the estimated number of
new jobs created or retained resulting from
the award, and first-tier subcontract
information (or aggregate information if the
subcontract is less than $25,000, or the
subcontractor is an individual or had gross
income in the previous tax year of less than
$300,000). While most of the data elements
impose only one-time burden collection,
some will require quarterly updates.
There are three data elements required in
the report that will likely require some
additional effort: (1) Estimating the
cumulative number of jobs created each
calendar quarter, (2) estimating the
cumulative number of jobs retained each
calendar quarter, and (3) providing the name
and total compensation of each of the five
most highly compensated officers of the
contractor for the calendar year in which the
contract is awarded, which applies at both
the prime and first-tier subcontract level. The
rule also requires the prime contractor to
report certain information, required by the
Federal Funding Accountability and
Transparency Act of 2006 (FFATA), about
first-tier subcontracts (though all awards
under $25,000 will be aggregated, eliminating
the need to report transaction-level data). The
prime contractor will have most of this
information in the subcontract award
document, such as the name of the
subcontractor, award number, and date of
award. However, the prime contractor will
have to obtain four of the elements directly
from the first-tier subcontractor: (1) The
unique identifier (DUNS Number) ‘‘for
awards of $25,000 or more’’ as well as for the

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subcontractor’s parent company, if the
subcontractor has a parent company, (2)
subcontractor’s physical address, (3)
subcontract primary performance location,
and (4) the compensation information
described earlier as required by FFATA and
reflected in section 1512 of the Recovery Act.
With respect to the DUNS Number, we
anticipate that most first-tier subcontractors
have a DUNS Number as it is a requirement
for receipt of any Government contract.
However, a company that never received nor
anticipated a Government contract might not
have a DUNS number and will have to
register for one with Dunn and Bradstreet.
The registration process is not burdensome,
can be done online or by phone, and requires
only information any company would have
on hand for business purposes. First-tier
subcontractors are not required to register in
the Central Contractor Registration (CCR) as
a consequence of this rule.
With respect to compensation information,
this requirement results from FFATA and
will not apply if the public has access to
information about compensation of the senior
executives through periodic reports filed
under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m(a),
78o(d)) or section 6104 of the Internal
Revenue Code of 1986. Otherwise, each
prime contractor and first-tier subcontractors
will have to disclose the compensation
information if it received (1) 80 percent or
more of annual gross revenues in Federal
awards; and (2) $25M or more in annual
gross revenue from Federal awards. Because
this requirement of FFATA became law on
December 26, 2007, we anticipate that those
companies to which it applies are aware of
the requirement and have been preparing to
provide this information.
5. Relevant Federal rules which may
duplicate, overlap, or conflict with the rule.
The rule includes the reporting
requirements stipulated by FFATA in FAR
Case 2008–039 FFATA flow-down and 2008–
037 Financial Disclosure.
These cases are in process and as they are
finalized, they will be amended to ensure
that they do not duplicate, overlap, or
conflict with the requirements of this interim
rule.
6. Description of any significant
alternatives to the rule which accomplish the
stated objectives of applicable statutes and
which minimize any significant economic
impact of the rule on small entities.
The rule requires Federal prime contractors
to respond to all of the reporting
requirements, eliminating some of the
reporting burden on first-tier subcontractors
despite the fact that they will have to provide
some information to the prime contractor.
Also, all of the reporting elements applied to
first-tier subcontractors, a significant
percentage of which will be small businesses,
are one-time collection burdens. The
Government believes that the rule will
further minimize the reporting burden on
Government contractors, including all small
businesses, as well as other businesses, by
using existing Federal acquisition/
registration systems to pre-populate certain
data elements.

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The FAR Secretariat will be
submitting a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. Interested
parties may obtain a copy from the FAR
Secretariat. The Councils will consider
comments from small entities
concerning the affected FAR Parts 4 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. (FAC 2005–32, FAR
case 2009–009), in all correspondence.
E. Paperwork Reduction Act
The Paperwork Reduction Act (Pub.
L. 104–13) applies because the interim
rule contains information collection
requirements. Accordingly, the FAR
Secretariat forwarded an emergency
information collection request for
approval of new information collection
requirements to the Office of
Management and Budget (OMB) under
44 U.S.C. Chapter 35, et seq. OMB
approved the new information
collection requirements as follows:
1. OMB Control No. 9000–0166—One
Time Reporting Requirements for Prime
Contractors.
2. OMB Control No. 9000–0167—One
Time Reporting for First-tier
Subcontractors.
3. OMB Control No. 9000–0168—One
Time Reporting, Compensation
Requirements.
4. OMB Control No. 9000–0169—
Quarterly Reporting for Prime
Contractors.
Comments on the interim rule as well
as the collection will be considered in
the revisions to both the rule and the
collection.
Any award funded by the Recovery
Act will contain the clause at 52.204–
11. This clause requires contractors to
report on use of Recovery Act funds.
The clause imposes public reporting
burden on prime contractors and, in a
more limited way, on their first-tier
subcontractors. According to the Federal
Procurement Data System (FPDS), there
are 129,331 active and unique prime
Federal contractors as of February 2009.
The estimate for the number of active
and unique prime Federal contractors
that will participate in awards funded
by the Recovery Act is 20,013. This is
based on using a factor of .16 of 129,331,
derived by dividing 129,331 by $517B
in procurement obligations for fiscal
year 2008 or by dividing estimated
Recovery Act dollars for contracts
($80B: Government’s best estimate of
Recovery Act dollars to be obligated by
contracts is between $60 and $80
billion; using $80 billion for calculation
purposes) by $517B. Of the estimated
20,013 Recovery Act prime contractors,

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it is estimated that 20 percent, or 4,003,
will be small businesses. It should be
noted that this is 20 percent of prime
contractors; this should not be confused
with the 23 percent small business
contracting goal which is based on
dollars and that continues to apply to
both Recovery Act spending and
agencies’ ongoing procurement
spending.
The number of first-tier
subcontractors estimated to participate
in Recovery Act awards is 60,039. This
was derived by estimating three first-tier
subcontractors for each prime
contractor. Of these 60,039 Recovery
Act first-tier subcontractors, it is
estimated that 25 percent, or 15,010,
will be small businesses.
Based on the above, the estimated
total number of small businesses, prime
and subcontractors, to which this rule
will apply is 19,013 and the estimated
total number of other than small
businesses to which this rule will apply
is 61,039.
Though Section 1512 requires that the
reports be completed by the prime
contractor for all data elements, for
practical purposes, the prime contractor
will have to obtain certain information
from their first-tier subcontractors,
hence the flow-down requirements of
paragraph (d)(10) of the clause.
Additionally, the information required
on the prime contractor award varies
from that required for the first-tier
subcontract awards. For instance, the
elements at paragraphs (d)(1) through
(9) are collection burdens associated
with the prime contract award while the
elements in (d)(10)(i) through (ix) are
associated with first-tier subcontracts.
Finally, the elements required by
Section 1512 of the Recovery Act are a
combination of those that will be
updated in each quarterly report, such
as jobs created and retained and
progress towards completion of the
overall purpose and expected outcomes
or results of the contract and those that
are one-time collection burdens, such as
award number and date and all of the
reporting requirements for first-tier
subcontracts. Therefore, the following
analysis separately estimates the burden
associated with the one-time reporting
elements and those that are updated
quarterly. The parenthetical reference
after the description of each reporting
element refers to the FAR clause. The
hours estimated per response include
the time for reviewing instructions,
searching existing data sources,
gathering the data, and completing the
collection of information. The estimated
total annual burden associated with
reporting requirements of FAR 52.204–

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Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
11 is $31,725,468, based on the
following:

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One-Time Reporting Elements
1. OMB Control No. 9000–0166—One
Time Reporting Requirements for Prime
Contractors. One-time reporting
elements for which the burden is
imposed on the prime contractor
include the following:
a. The award number for both its
Government contract and first-tier
subcontracts ((d)(1) and (d)(10)(viii));
b. Program or project title, if any, for
its Government contract ((d)(4));
c. A description of the overall purpose
and expected outcomes or results of the
contract and first-tier subcontracts,
including significant deliverables and, if
appropriate, units of measure ((d)(5) and
(d)(10)(vii));
d. Name of the first-tier subcontractor
((d)(10)(ii));
e. Amount of the first-tier subcontract
award ((d)(10)(iii));
f. Date of the first-tier subcontract
award ((d)(10)(iv));
g. Applicable North American
Industry Classification System (NAICS)
code ((d)(10)(v)); and
h. Funding agency ((d)(10)(vi)).
We estimate the total annual public
cost burden for these elements to be
$850,544 based on the following:
Respondents: 20,013.
Responses per respondent: 1.25
(reflects estimate that 25 percent of
contractors will have more than one
Recovery Act funded award on which to
report).
Total annual responses: 25,016.
Preparation hours per response: .5.
Total response burden hours: 12,508.
Average hourly wages ($50.00+36.35
percent overhead): 68.00.
Estimated cost to the public:
$850,544.
2. OMB Control No. 9000–0168—One
Time Reporting, Compensation
Requirements. A one-time reporting
element for which the burden is
imposed on certain prime contractors
and first-tier subcontractors to publicly
disclose the names and total
compensation of each of the contractor’s
or first-tier subcontractor’s five most
highly compensated officers, for the
calendar year in which the award was
made ((d)(8) and (d)(10)(xi)) (see
applicability requirements in the clause
at (d)(8) and (d)(10)).
While Section 1512(c)(4) of the
Recovery Act requires reporting on all
FFATA data elements, including the
compensation information, it limits the
prime’s reporting responsibility to firsttier subcontractors that meet the
applicability requirements. The FAR
clause requires this compensation

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disclosure for prime contractors as well
because to exclude prime contractors
while requiring disclosure for first-tier
subcontractors would be unsupportable
given the transparency goals of both
FFATA and the Recovery Act.
There are likely to be some prime
contractors that already provide public
access to the compensation of senior
executives through periodic reports
filed under section 13(a) or 15(d) of the
Securities Exchange Act of 1934 or
section 6104 of the Internal Revenue
Code of 1986. For purposes of this
analysis, the Government estimates that
5 percent of prime contractors already
provide such public access. There are
also likely to be some first-tier
subcontractors that do not meet either of
the revenue thresholds for applicability.
For purposes of this analysis, the
Government estimates that 5 percent of
first-tier subcontractors will not have to
disclose compensation information
because they do not meet the revenue
thresholds.
We estimate the total annual public
cost burden for these elements to be
$19,392,444, based on the following:
Respondents: 76,049 (20,013 primes-5
percent=19,012+60,039 first-tier
subcontractors-5 percent=57,037).
Responses per respondent: 1.25
(reflects estimate that 25 percent of all
respondents will have more than one
Recovery Act funded award on which to
report).
Total annual responses: 95,061.
Preparation hours per response: 3.
Total response burden hours: 285,183.
Average hourly wages ($50.00+36.35
percent overhead): $68.00.
Estimated cost to the public:
$19,392,444.
3. OMB Control No. 9000–0167—One
Time Reporting for First-tier
Subcontractors.
One-time reporting elements for
which the burden is imposed only on
the first-tier subcontractor include the
following:
a. Unique identifier (DUNS Number)
for the subcontractor receiving the
award and for the subcontractor’s parent
company, if the subcontractor has a
parent company ((d)(10)(i));
b. Subcontractor’s physical address
including street address, city, state, and
country. Also include the nine-digit zip
code and congressional district if
applicable((d)(10)(ix)); and
c. Subcontract primary performance
location including street address, city,
state, and country. Also include the
nine-digit zip code and congressional
district if applicable ((d)(10)(x)).
The Government expects that most
first-tier subcontractors will have a
DUNS number. However, if a company

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has never received nor anticipated a
Government contract, it would be
required to register for a DUNS number
which is not an onerous process and can
be done online or by phone using
information a company would have on
hand for business purposes.
We estimate the total annual public
cost burden for these elements to be
$1,275,816, based on the following:
Respondents: 60,039.
Responses per respondent: 1.25
(reflects estimate that 25 percent of firsttier subcontractors will have more than
one Recovery Act funded award on
which to report).
Total annual responses: 75,049.
Preparation hours per response: .25.
Total response burden hours: 18,762.
Average hourly wages ($50.00+36.35
percent overhead):$68.00.
Estimated cost to the public:
$1,275,816.
4. OMB Control No. 9000–0169—
Quarterly Reporting for Prime
Contractors. Elements updated quarterly
for which the burden is imposed on the
prime contractor include the following:
a. The amount of Recovery Act funds
invoiced by the contractor, cumulative
since the beginning of the contract
((d)(2));
b. A list of all significant services
performed or supplies delivered,
including construction, for which the
contractor has invoiced ((d)(3));
c. An assessment of the contractor’s
progress towards the completion of the
overall purpose and expected outcomes
or results of the contract (i.e., not
started, less than 50 percent completed,
completed 50 percent or more, or fully
completed). This covers the contract (or
portion thereof) funded by the Recovery
Act ((d)(6));
d. A narrative description of the
employment impact of the Recovery Act
funded work ((d)(7)(i) through (ii)); and
e. For subcontracts valued at less than
$25,000 or any subcontracts awarded to
an individual, or subcontracts awarded
to a subcontractor that in the previous
tax year had gross income under
$300,000, the contractor shall only
report the aggregate number of such first
tier subcontracts awarded in the quarter
and their aggregate total dollar amount
((d)(9)).
We estimate the total annual public
cost burden for these elements to be
$10,206,664, based on the following:
Respondents: 20,013.
Responses per respondent: 1.25
(reflects 4 reports multiplied by a factor
of 1.25 to reflect Government’s estimate
that 25 percent of contractors will have
more than one Recovery Act funded
award on which to report).
Total annual responses: 100,065.

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Preparation hours per response: 1.5.
Total response burden hours: 150,098.
Average hourly wages ($50.00+36.35
percent overhead): $68.00.
Estimated cost to the public:
$10,206,664.

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F. Request for Comments Regarding
Paperwork Burden
Submit comments, including
suggestions for reducing this burden,
not later than June 1, 2009 to: FAR Desk
Officer, OMB, Room 10102, NEOB,
Washington, DC 20503, and a copy to
the General Services Administration,
FAR Secretariat (VPR), 1800 F Street,
NW., Room 4041, Washington, DC
20405. Please cite the applicable OMB
Control No.: 9000–0166; 9000–0167;
9000–0168; or 9000–0169, and FAR
Case 2009–009, American Recovery and
Reinvestment Act—Reporting
Requirements, in all correspondence.
Public comments are particularly
invited on: whether this collection of
information is necessary for the proper
performance of functions of the FAR,
and will have practical utility; whether
our estimate of the public burden of this
collection of information is accurate,
and based on valid assumptions and
methodology; ways to enhance the
quality, utility, and clarity of the
information to be collected; and ways in
which we can minimize the burden of
the collection of information on those
who are to respond, through the use of
appropriate technological collection
techniques or other forms of information
technology.
Requester may obtain a copy of the
justification from the General Services
Administration, FAR Secretariat (VPR),
Room 4041, Washington, DC 20405,
telephone (202) 501–4755. Please cite
the applicable OMB Control No.: 9000–
0166, 9000–0167; 9000–0168; or 9000–
0169, and FAR Case 2009–009,
American Recovery and Reinvestment
Act—Reporting Requirements, in all
correspondence.
The Paperwork Reduction Act applies
to this interim rule.
G. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because the
American Recovery and Reinvestment
Act of 2009 became effective on
enactment on February 17, 2009, and

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agencies are ready to award contracts
using funds appropriated by the Act.
Without a FAR clause, agencies will be
forced to develop their own clause,
which would (1) significantly increase
the costs for Government as well as
contractors who may have to comply
with varied clauses and reporting
mechanisms, (2) increase the risk of
non-compliance, and (3) degrade
transparency and public understanding.
Waiting for public comment prior to
issuing a clause will require resourceintensive and costly post-award bilateral
negotiations and may hinder recovery.
However, pursuant to Public Law 98–
577 and FAR 1.501, the Councils will
consider public comments received in
response to this interim rule in the
formation of the final rule.
List of Subjects in 48 CFR Parts 4 and
52
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.

Therefore, DoD, GSA, and NASA
amend 48 CFR parts 4 and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 4 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 4—ADMINISTRATIVE MATTERS
■

2. Add subpart 4.15 to read as follows:

Subpart 4.15–American Recovery and
Reinvestment Act—Reporting
Requirements
Sec.
4.1500
4.1501
4.1502

Scope of subpart.
Procedures.
Contract clause.

4.1500

Scope of subpart.

This subpart implements section
1512(c) of Division A of the American
Recovery and Reinvestment Act of 2009
(Pub. L. 111–5) (Recovery Act), which
requires, as a condition of receipt of
funds, quarterly reporting on the use of
funds. The subpart also implements the
data elements of the Federal Funding
Accountability and Transparency Act of
2006, as amended (Pub. L. 109–282).
Contractors that receive awards (or
modifications to existing awards)
funded, in whole or in part by the
Recovery Act, must report information
including, but not limited to—
(a) The dollar amount of contractor
invoices;
(b) The supplies delivered and
services performed;

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(c) An assessment of the completion
status of the work;
(d) An estimate of the number of jobs
created and the number of jobs retained
as a result of the Recovery Act funds;
(e) Names and total compensation of
each of the five most highly
compensated officers for the calendar
year in which the contract is awarded;
and
(f) Specific information on first-tier
subcontractors.
4.1501

Procedures.

(a) In any contract action funded in
whole or in part by the Recovery Act,
the contracting officer shall indicate that
the contract action is being made under
the Recovery Act, and indicate which
products or services are funded under
the Recovery Act. This requirement
applies whenever Recovery Act funds
are used, regardless of the contract
instrument.
(b) To maximize transparency of
Recovery Act funds that must be
reported by the contractor, the
contracting officer shall structure
contract awards to allow for separately
tracking Recovery Act funds. For
example, the contracting officer may
consider awarding dedicated separate
contracts when using Recovery Act
funds or establishing contract line item
number (CLIN) structures to mitigate
commingling of Recovery funds with
other funds.
(c) Contracting officers shall ensure
that the contractor complies with the
reporting requirements of 52.204–11,
American Recovery and Reinvestment
Act—Reporting Requirements. If the
contractor fails to comply with the
reporting requirements, the contracting
officer shall exercise appropriate
contractual remedies.
(d) The contracting officer shall make
the contractor’s failure to comply with
the reporting requirements a part of the
contractor’s performance information
under Subpart 42.15.
4.1502

Contract clause.

Insert the clause at 52.204–11,
American Recovery and Reinvestment
Act—Reporting Requirements in all
solicitations and contracts funded in
whole or in part with Recovery Act
funds, except classified solicitations and
contracts. This includes, but is not
limited to, Governmentwide Acquisition
Contracts (GWACs), multi-agency
contracts (MACs), Federal Supply
Schedule (FSS) contracts, or agency
indefinite-delivery/indefinite-quantity
(ID/IQ) contracts that will be funded
with Recovery Act funds. Contracting
officers shall ensure that this clause is
included in any existing contract or

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Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
order that will be funded with Recovery
Act funds. Contracting officers may not
use Recovery Act funds on existing
contracts and orders if the clause at
52.204–11 is not incorporated.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
3. Add section 52.204–11 to read as
follows:

■

52.204–11 American Recovery and
Reinvestment Act—Reporting
Requirements

As prescribed in 4.1502, insert the
following clause:

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American Recovery and Reinvestment
Act—Reporting Requirements (MAR
2009)
(a) Definitions. As used in this clause—
Contract, as defined in FAR 2.101, means
a mutually binding legal relationship
obligating the seller to furnish the supplies
or services (including construction) and the
buyer to pay for them. It includes all types
of commitments that obligate the
Government to an expenditure of
appropriated funds and that, except as
otherwise authorized, are in writing. In
addition to bilateral instruments, contracts
include (but are not limited to) awards and
notices of awards; job orders or task letters
issued under basic ordering agreements;
letter contracts; orders, such as purchase
orders, under which the contract becomes
effective by written acceptance or
performance; and bilateral contract
modifications. Contracts do not include
grants and cooperative agreements covered
by 31 U.S.C. 6301, et seq. For discussion of
various types of contracts, see FAR Part 16.
First-tier subcontract means a subcontract
awarded directly by a Federal Government
prime contractor whose contract is funded by
the Recovery Act.
Jobs created means an estimate of those
new positions created and filled, or
previously existing unfilled positions that are
filled, as a result of funding by the American
Recovery and Reinvestment Act of 2009
(Recovery Act). This definition covers only
prime contractor positions established in the
United States and outlying areas (see
definition in FAR 2.101). The number shall
be expressed as ‘‘full-time equivalent’’ (FTE),
calculated cumulatively as all hours worked
divided by the total number of hours in a
full-time schedule, as defined by the
contractor. For instance, two full-time
employees and one part-time employee
working half days would be reported as 2.5
FTE in each calendar quarter.
Jobs retained means an estimate of those
previously existing filled positions that are
retained as a result of funding by the
American Recovery and Reinvestment Act of
2009 (Recovery Act). This definition covers
only prime contractor positions established
in the United States and outlying areas (see
definition in FAR 2.101). The number shall
be expressed as ‘‘full-time equivalent’’ (FTE),
calculated cumulatively as all hours worked

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divided by the total number of hours in a
full-time schedule, as defined by the
contractor. For instance, two full-time
employees and one part-time employee
working half days would be reported as 2.5
FTE in each calendar quarter.
Total compensation means the cash and
noncash dollar value earned by the executive
during the contractor’s past fiscal year of the
following (for more information see 17 CFR
229.402(c)(2)):
(1) Salary and bonus.
(2) Awards of stock, stock options, and
stock appreciation rights. Use the dollar
amount recognized for financial statement
reporting purposes with respect to the fiscal
year in accordance with the Statement of
Financial Accounting Standards No. 123
(Revised 2004) (FAS 123R), Shared Based
Payments.
(3) Earnings for services under non-equity
incentive plans. Does not include group life,
health, hospitalization or medical
reimbursement plans that do not
discriminate in favor of executives, and are
available generally to all salaried employees.
(4) Change in pension value. This is the
change in present value of defined benefit
and actuarial pension plans.
(5) Above-market earnings on deferred
compensation which is not tax-qualified.
(6). Other compensation. For example,
severance, termination payments, value of
life insurance paid on behalf of the
employee, perquisites or property if the value
for the executive exceeds $10,000.
(b) This contract requires the contractor to
provide products and/or services that are
funded under the American Recovery and
Reinvestment Act of 2009 (Recovery Act).
Section 1512(c) of the Recovery Act requires
each contractor to report on its use of
Recovery Act funds under this contract.
These reports will be made available to the
public.
(c) Reports from contractors for all work
funded, in whole or in part, by the Recovery
Act, and for which an invoice is submitted
prior to June 30, 2009, are due no later than
July 10, 2009. Thereafter, reports shall be
submitted no later than the 10th day after the
end of each calendar quarter.
(d) The Contractor shall report the
following information, using the online
reporting tool available at http://
www.FederalReporting.gov.
(1) The Government contract and order
number, as applicable.
(2) The amount of Recovery Act funds
invoiced by the contractor for the reporting
period. A cumulative amount from all the
reports submitted for this action will be
maintained by the government’s on-line
reporting tool.
(3) A list of all significant services
performed or supplies delivered, including
construction, for which the contractor
invoiced in this calendar quarter.
(4) Program or project title, if any.
(5) A description of the overall purpose
and expected outcomes or results of the
contract, including significant deliverables
and, if appropriate, associated units of
measure.
(6) An assessment of the contractor’s
progress towards the completion of the

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overall purpose and expected outcomes or
results of the contract (i.e., not started, less
than 50 percent completed, completed 50
percent or more, or fully completed). This
covers the contract (or portion thereof)
funded by the Recovery Act.
(7) A narrative description of the
employment impact of work funded by the
Recovery Act. This narrative should be
cumulative for each calendar quarter and
only address the impact on the contractor’s
workforce. At a minimum, the contractor
shall provide—
(i) A brief description of the types of jobs
created and jobs retained in the United States
and outlying areas (see definition in FAR
2.101). This description may rely on job
titles, broader labor categories, or the
contractor’s existing practice for describing
jobs as long as the terms used are widely
understood and describe the general nature
of the work; and
(ii) An estimate of the number of jobs
created and jobs retained by the prime
contractor, in the United States and outlying
areas. A job cannot be reported as both
created and retained.
(8) Names and total compensation of each
of the five most highly compensated officers
of the Contractor for the calendar year in
which the contract is awarded if—
(i) In the Contractor’s preceding fiscal year,
the Contractor received—
(A) 80 percent or more of its annual gross
revenues from Federal contracts (and
subcontracts), loans, grants (and subgrants)
and cooperative agreements; and
(B) $25,000,000 or more in annual gross
revenues from Federal contracts (and
subcontracts), loans, grants (and subgrants)
and cooperative agreements; and
(ii) The public does not have access to
information about the compensation of the
senior executives through periodic reports
filed under section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the
Internal Revenue Code of 1986.
(9) For subcontracts valued at less than
$25,000 or any subcontracts awarded to an
individual, or subcontracts awarded to a
subcontractor that in the previous tax year
had gross income under $300,000, the
Contractor shall only report the aggregate
number of such first tier subcontracts
awarded in the quarter and their aggregate
total dollar amount.
(10) For any first-tier subcontract funded in
whole or in part under the Recovery Act, that
is over $25,000 and not subject to reporting
under paragraph 9, the contractor shall
require the subcontractor to provide the
information described in (i), (ix), (x), and (xi)
below to the contractor for the purposes of
the quarterly report. The contractor shall
advise the subcontractor that the information
will be made available to the public as
required by section 1512 of the Recovery Act.
The contractor shall provide detailed
information on these first-tier subcontracts as
follows:
(i) Unique identifier (DUNS Number) for
the subcontractor receiving the award and for
the subcontractor’s parent company, if the
subcontractor has a parent company.
(ii) Name of the subcontractor.

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(iii) Amount of the subcontract award.
(iv) Date of the subcontract award.
(v) The applicable North American
Industry Classification System (NAICS) code.
(vi) Funding agency.
(vii) A description of the products or
services (including construction) being
provided under the subcontract, including
the overall purpose and expected outcomes
or results of the subcontract.
(viii) Subcontract number (the contract
number assigned by the prime contractor).
(ix) Subcontractor’s physical address
including street address, city, state, and
country. Also include the nine-digit zip code
and congressional district if applicable.
(x) Subcontract primary performance
location including street address, city, state,
and country. Also include the nine-digit zip
code and congressional district if applicable.
(xi) Names and total compensation of each
of the subcontractor’s five most highly
compensated officers, for the calendar year in
which the subcontract is awarded if—
(A) In the subcontractor’s preceding fiscal
year, the subcontractor received—
(l) 80 percent or more of its annual gross
revenues in Federal contracts (and
subcontracts), loans, grants (and subgrants),
and cooperative agreements; and
(2) $25,000,000 or more in annual gross
revenues from Federal contracts (and
subcontracts), loans, grants (and subgrants),
and cooperative agreements; and
(B) The public does not have access to
information about the compensation of the
senior executives through periodic reports
filed under section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the
Internal Revenue Code of 1986.

(End of clause)
4. Amend section 52.212–5 by
revising the date of the clause; and
redesignating paragraphs (b)(4) through
(b)(42) as (b)(5) through (b)(43),
respectively, and adding a new
paragraph (b)(4) to read 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
(MAR 2009)
*

*

*

*

*

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(b) * * *
_ (4) 52.204–11, American Recovery and
Reinvestment Act—Reporting Requirements
(MAR 2009) (Pub. L. 111–5).

*

*

*

*

*

[FR Doc. E9–7025 Filed 3–30–09; 8:45 am]
BILLING CODE 6820–EP–P

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DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 12, 13, 14, 15, and 52
[FAC 2005–32; FAR Case 2009–011; Item
V; Docket 2009–0012, Sequence 1]
RIN 9000–AL20

Federal Acquisition Regulation; FAR
Case 2009–011, American Recovery
and Reinvestment Act of 2009 (the
Recovery Act)—GAO/IG Access
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
American Recovery and Reinvestment
Act of 2009 (Recovery Act) with respect
to Sections 902, 1514, and 1515 of
Division A.
DATES: Effective Date: March 31, 2009.
Applicability Date: The rule applies to
solicitations issued and contracts
awarded on or after the effective date of
this rule. Contracting officers shall
modify, on a bilateral basis, in
accordance with FAR 1.108(d)(3),
existing contracts to include the FAR
clauses (Alternates) for future orders, if
Recovery Act funds will be used. In the
event that a contractor refuses to accept
such a modification, the contractor will
not be eligible for receipt of Recovery
Act funds.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before June 1,
2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–32, FAR case
2009–011, by any of the following
methods:
• Regulations.gov: http://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2009–011’’ under
the heading ‘‘Comment or Submission’’.
Select the link ‘‘Send a Comment or
Submission’’ that corresponds with FAR
Case 2009–011. Follow the instructions
provided to complete the ‘‘Public
Comment and Submission Form’’.

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Please include your name, company
name (if any), and ‘‘FAR Case 2009–
011’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, FAR Secretariat (VPR),
1800 F Street, NW., Room 4041, ATTN:
Hada Flowers, Washington, DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–32, FAR case
2009–011, 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.
Edward N. Chambers, Procurement
Analyst, at (202) 501–3221 for
clarification of content. Please cite FAC
2005–32, FAR case 2009–011. For
information pertaining to status or
publication schedules, contact the FAR
Secretariat at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements the
American Recovery and Reinvestment
Act of 2009 (Recovery Act) with respect
to Sections 902, 1514, and 1515, by
adding alternate clauses to 52.214–26,
‘‘Audit and Records–Sealed Bidding,’’
52.212–5, ‘‘Contract Terms and
Conditions Required to Implement
Statutes or Executive Orders–
Commercial Items,’’ and FAR 52.215–2,
‘‘Audit and Records-Negotiation.’’
Further, FAR 12.504(a)(7) is amended
for contracts using Recovery Act funds
to apply 41 U.S.C. 254d(c) and 10 U.S.C.
2313(c), Examination of Records of
Contractor, to commercial item
subcontracts that are otherwise exempt
when subcontractors are not required to
provide cost or pricing data.
Likewise, 13.006(d) is amended for
contracts using Recovery Act funds to
apply 52.215–2, ‘‘Audit and RecordsNegotiation’’ to contracts and
subcontracts which are otherwise
exempt because they are under the
simplified acquisition threshold. This
requirement provides further
transparency into Federal contracting
whose contracts are funded with
Recovery Act funds.
B. Discussion
On February 17, 2009, the President
signed Public Law 111–5, the American
Recovery and Reinvestment Act of 2009,
which includes a number of provisions
to be implemented in Federal
Government contracts. Among these
provisions are sections 902, 1514, and
1515 which serve to ‘‘prevent the fraud,
waste, and abuse’’ of Recovery Act

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