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Federal Register / Vol. 70, No.

109 / Wednesday, June 8, 2005 / Rules and Regulations 33655

Item V—Applicability of SDB and added to the related contract clause at Dated: May 26, 2005.
HUBZone Price Evaluation Factor (FAR FAR 52.215–18, Reversion or Vincent J. Feck,
Case 2003–015) Adjustment of Plans for Postretirement Lt Col, Acting Director, Defense Procurement
This final rule removes some of the Benefits (PRB) Other Than Pensions, and Acquisition Policy.
exceptions to the Small Disadvantaged specifying the method of recovery of Dated: May 27, 2005.
Business and HUBZone preference refunds and credits. The rule revises the David A. Drabkin,
programs. The contracting officer will cost principle and contract clause by
Senior Procurement Executive, Office of the
now apply a price evaluation improving clarity and structure, and Chief Acquisition Officer, General Services
adjustment to offers of eligible products removing unnecessary and duplicative Administration.
in acquisitions subject to the Trade language.
Agreements Act. This rule will have a Dated: May 26, 2005.
The case was initiated as a result of Scott Thompson,
beneficial impact on all domestic comments and recommendations
concerns, especially small entities that Acting Assistant Administrator for
received from industry and Government Procurement, National Aeronautics and
are small disadvantaged business representatives during a series of public
concerns or HUBZone small business Space Administration.
meetings. This rule is of particular [FR Doc. 05–11179 Filed 6–7–05; 8:45 am]
interest to contractors and contracting BILLING CODE 6820–EP–S
Item VI—Labor Standards for Contracts officers who use cost analysis to price
Involving Construction (FAR Case contracts and modifications, and who
2002–004) determine or negotiate reasonable costs DEPARTMENT OF DEFENSE
This final rule implements in the FAR in accordance with a clause of a
contract, e.g., price revision of fixed- GENERAL SERVICES
the DoL rule revising the terms
price incentive contracts, terminated ADMINISTRATION
‘‘construction, prosecution, completion
or repair’’ (29 CFR 5.2(j)) and ‘‘site of contracts, or indirect cost rates.
the work’’ (29 CFR 5.2(l)). In addition, Item VIII—Gains and Losses (FAR Case SPACE ADMINISTRATION
the Councils have clarified several
definitions relating to labor standards
48 CFR Parts 2, 22, 52
for contracts involving construction and This final rule amends FAR 31.205–
made requirements for flow down of 16 to address the timing of the gain or [FAC 2005–04; FAR Case 2004–010; Item
labor clauses more precise. loss recognition of sale and leaseback I]
The most significant impact of this arrangements of contractor depreciable RIN 9000–AK04
rule is that contractors must pay Davis- property or other capital assets. The
Bacon Act wages at a secondary site of final rule defines the disposition date Federal Acquisition Regulation;
the work, if a significant portion of the for a sale leaseback arrangement as the Notification of Employee Rights
work is to be constructed at that site and Concerning Payment of Union Dues or
date the contractor begins to incur an
the site meets the other criteria specified Fees
obligation for lease or rental costs.
in the rule. When transporting portions
of the building or work between the Contracting officers, auditors, and AGENCIES: Department of Defense (DoD),
secondary site of the work and the contractors with responsibilities related General Services Administration (GSA),
primary site of the work, the wages for to allowable cost determinations and National Aeronautics and Space
the primary site of the work are involving sale and leaseback Administration (NASA).
applicable. The contracting officer must arrangements of contractor depreciable ACTION: Final rule.
coordinate with the Department of property or other capital assets will be
Labor when there is any uncertainty as impacted by new policies governing that SUMMARY: The Civilian Agency
to whether a work site is a secondary area. Acquisition Council and the Defense
site of the work. Dated: May 27, 2005. Acquisition Regulations Council
(Councils) have agreed to convert the
Item VII—Deferred Compensation and Julia B. Wise,
interim rule amending the Federal
Postretirement Benefits Other Than Director, Contract Policy Division. Acquisition Regulation (FAR) published
Pensions (FAR Case 2001–031) in the Federal Register at 69 FR 76352,
Federal Acquisition Circular
This final rule amends the FAR by December 20, 2004, to a final rule
revising paragraph (k), Deferred Federal Acquisition Circular (FAC) without change. This rule implemented
compensation other than pensions, and 2005–04 is issued under the authority of Executive Order (E.O.) 13201,
paragraph (o), Postretirement benefits the Secretary of Defense, the Notification of Employee Rights
other than pensions, of FAR 31.205–6, Administrator of General Services, and Concerning Payment of Union Dues or
Compensation for personal services, the Administrator for the National Fees. The rule requires Government
cost principle. Changes to paragraph (k) Aeronautics and Space Administration. contractors and subcontractors to post
include: deletion of language that notices, in all plants and offices,
Unless otherwise specified, all
duplicates definitions provided in FAR whether or not used in performing work
Federal Acquisition Regulation (FAR)
31.001, elimination of obsolete that supports a Federal contract,
coverage, and use of terminology and other directive material contained informing their employees that under
consistent with Cost Accounting in FAC 2005–04 is effective July 8, 2005, Federal law they cannot be required to
Standards. Changes to paragraph (o) except for Items I, II, III, and IV, which join a union or maintain membership in
include: moving and revising language are effective June 8, 2005. a union to retain their jobs. The required
in (o)(3) through (o)(5) to (o)(2)(iii) notices also advise employees who are
because these requirements only apply not union members that they can object
to accrual costing other than terminal to the use of their union dues for certain
funding. In addition, new coverage is purposes.

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33656 Federal Register / Vol. 70, No. 109 / Wednesday, June 8, 2005 / Rules and Regulations

DATES: Effective Date: June 8, 2005. Administration that the DOL final rule 2004, to a final rule without change. The
The Department of Labor’s final rule will not substantially change existing final rule amends the Federal
implementing E.O. 13201 was published obligations for Federal contractors. The Acquisition Regulation (FAR) to
on March 29, 2004, with an effective Councils did not receive any comments implement section 1428 of the Services
date of April 28, 2004. This FAR rule is relating to the Regulatory Flexibility Acquisition Reform Act of 2003, Title
the formal notification to contracting Act. However, the Councils will XIV of Public Law 108–136,
officers to insert the E.O. 13201 clause consider comments from small entities Authorization of Telecommuting for
in covered solicitations issued on or concerning the affected FAR Parts 2, 22, Federal Contractors.
after the effective date of this rule. and 52 in accordance with 5 U.S.C. 610. DATES: Effective Date: June 8, 2005.
FAR Secretariat at (202) 501–4755 for comments separately and should cite 5 FAR Secretariat at (202) 501–4755 for
information pertaining to status or U.S.C. 601, et seq. (FAC 2005–04, FAR information pertaining to status or
publication schedules. For clarification case 2004–010), in correspondence. publication schedules. For clarification
of content, contact Ms. Kimberly A. C. Paperwork Reduction Act of content, contact Mr. Gerald Zaffos,
Marshall, Procurement Analyst, at (202) Procurement Analyst, at (202) 208–
219–0986. Please cite FAC 2005–04, The Paperwork Reduction Act does 6091. Please cite FAC 2005–04, FAR
FAR case 2004–010. apply; however, these changes to the case 2003–025.
FAR do not impose additional
information collection requirements to
A. Background the paperwork burden previously A. Background
approved under OMB Control Number An interim rule implementing Section
This final rule amends the Federal
1215–0203. 1428 of the Services Acquisition Reform
Acquisition Regulation. DoD, GSA, and
NASA published an interim rule in the List of Subjects in 48 CFR Parts 2, 22, Act of 2003 (Title XIV of Public Law
Federal Register at 69 FR 76352, 52 108–136) was published in the Federal
December 20, 2004. The 60-day Register on October 5, 2004 (69 FR
Government procurement.
comment period for the interim rule 59701). Five comments were received
ended February 18, 2005. The Councils Dated: May 27, 2005. from four respondents in response to the
did not receive any public comments, Julia B. Wise, interim rule. While all of the
and, therefore, agree to finalize the Director, Contract Policy Division. commenters were supportive of the rule,
interim rule without change. ■ Interim Rule Adopted as Final Without the commenters offered the following
This is not a significant regulatory Change recommendations to maximize the use
action and, therefore, was not subject to ■ Accordingly, the interim rule of telecommuting for Federal
review under Section 6(b) of Executive amending 48 CFR parts 2, 22, and 52, contractors. One commenter suggested
Order 12866, Regulatory Planning and which was published at 69 FR 76352, that the Councils provide an incentive
Review, dated September 30, 1993. This December 20, 2004, is adopted as a final for ‘‘suppliers who take the initiative to
rule is not a major rule under 5 U.S.C. rule without change. hire telecommuting contractors.’’ The
804. [FR Doc. 05–11180 Filed 6–7–05; 8:45 am] Councils did not adopt this suggestion
because the statute does not establish
B. Regulatory Flexibility Act incentives, and the Councils believe
The Department of Defense, the establishing such an incentive is beyond
General Services Administration, and DEPARTMENT OF DEFENSE the scope and authority of the Councils.
the National Aeronautics and Space Another commenter believes that the
Administration certify that this final GENERAL SERVICES rule does not go far enough because it
rule will not have a significant ADMINISTRATION allows the contracting officer to
economic impact on a substantial determine that allowing telecommuting
number of small entities within the NATIONAL AERONAUTICS AND would be contrary to the agency’s
meaning of the Regulatory Flexibility SPACE ADMINISTRATION requirements. The commenter believes
Act, 5 U.S.C. 601, et seq., because the that Government managers who are
rule merely requires contractors to post 48 CFR Parts 7, 11, 13, and 15 uncomfortable with the concept of
notices and to insert a clause in [2005–04; FAR Case 2003–025; Item II]
telecommuting will convince
subcontracts and purchase orders contracting officers to disallow
requiring subcontractors and vendors to RIN 9000–AK03 telecommuting more often than allow it.
post the notices also. The notices advise To prevent this, the commenter
the contractors’ and subcontractors’ Federal Acquisition Regulation; recommended that ‘‘telecommuting be
nonunion member employees of their Telecommuting for Federal established as a ‘requirement’ for some
rights under existing law concerning use Contractors percentage of government contracts and
of their union dues or fees where a AGENCIES: Department of Defense (DoD), that telecommuting be defined as
union security agreement is in place. General Services Administration (GSA), working offsite for 25 or more hours a
The rule provides sanctions for and National Aeronautics and Space week.’’ This commenter also
noncompliance, but full compliance Administration (NASA). recommended that contracting officers
with the Executive Order and any ACTION: Final rule. who award contracts to firms that allow
related rules, regulations and orders of their employees to telecommute receive
the Secretary of Labor is expected of all SUMMARY: The Civilian Agency additional training, funds, ‘‘and a leg up
contractors. Further, this rule is only Acquisition Council and the Defense on promotion.’’ The Councils did not
implementing the Department of Labor Acquisition Regulations Council adopt this recommendation because
(DOL) final rule. The Secretary of Labor (Councils) have agreed to convert the there is no evidence that contracting
has certified to the Chief Counsel for interim rule published in the Federal officers will not act in good faith when
Advocacy at the Small Business Register at 69 FR 59701, October 5, making a determination not to allow

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