Federal Acquisition Regulation; Certification RequirementsDrug- Free Workplace

SUMMARY: The Civilian Agency Acquisition Council (CAAC) and the Defense

Acquisition Regulations Council (DARC) are proposing to amend the

Federal Acquisition Regulation (FAR) to delete the requirement for an

offeror to provide a certification regarding a drug-free workplace.

This regulatory action was not subject to Office of Management and

Budget review under Executive Order 12866, dated September 30, 1993.

This is not a major rule under 5 U.S.C. 804.

DATES: Comments should be submitted on or before August 19, 1996 to be

considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to:

General Services Administration, FAR Secretariat (MVRS), 18th & F

Streets, NW, Room 4037, Washington, DC 20405.

Please cite FAR case 96-311 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758

in reference to this FAR case. For general information, contact the FAR

Secretariat, Room 4037, GS Building, Washington, DC 20405; telephone:

(202) 501-4755. Please cite FAR case 96-311.

SUPPLEMENTARY INFORMATION:

A. Background

Section 4301(a) of the Fiscal Year 1996 Defense Authorization Act

(Pub. L. 104-106) amended 41 U.S.C. 701 to eliminate the requirement

for an offeror to certify that it will take certain actions to provide

a drug-free workplace. The proposed rule revises FAR Subpart 23.5 to

remove the requirement for the certification and removes the

solicitation provision at FAR 52.223-5.

B. Regulatory Flexibility Act

This proposed rule is not expected to 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. Although the rule

eliminates a certification requirement, the underlying policy regarding

maintenance of a drug-free workplace has not changed. An Initial

Regulatory Flexibility Analysis has, therefore, not been performed.

Comments from small entities concerning the affected FAR subpart will

be considered in accordance with section 610 of the Act. Such comments

must be submitted separately and should cite 5 U.S.C. 601, et seq.,

(FAR case 96-311), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed

changes to the FAR do not impose recordkeeping or information

collection requirements, or collections of information from offerors,

contractors, or members of the public which require the approval of the

Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 9, 13, 23 and 52

Government procurement.

Dated: May 12, 1996.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, it is proposed that 48 CFR parts 9, 13, 23 and 52 be

amended as set forth below:

1. The authority citation for 48 CFR parts 9, 13, 23 and 52

continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

PART 9--CONTRACTOR QUALIFICATIONS

2. Section 9.406-2 is amended by revising paragraph (b)(2) to read

as follows:

9.406-2 Causes for debarment.

* * * * *

(b) * * *

(2) Violations of the Drug-Free Workplace Act of 1988 (Public Law

100-690 as indicated by--

(i) Failure to comply with the requirements of the clause at

52.223-6, Drug-Free Workplace; or

(ii) Such a number of contractor employees having been convicted of

violations of criminal drug statutes occurring in the workplace, as to

indicate that the contractor has failed to make a good faith effort to

provide a drug-free workplace (see 23.505).

* * * * *

3. Section 9.407-2 is amended by revising paragraph (a)(4) to read

as follows:

9.407.2 Causes for suspension.

(a) * * *

(4) Violations of the Drug-Free Workplace Act of 1988 (Public Law

100-690), as indicated by--

(i) Failure to comply with the requirements of the clause at

52.223-6, Drug-Free Workplace; or

(ii) Such a number of contractor employees having been convicted of

violations of criminal drug statutes occurring in the workplace, as to

indicate that the contractor has failed to make a good faith effort to

provide a drug-free workplace (see 23.504).

* * * * *

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

4. Section 13.111 is amended by revising paragraphs (h) and (i) and

removing paragraph (j) to read as follows:

13.111 Inapplicable provisions and clauses.

* * * * *

(h) 52.222-4, Contract Work Hours and Safety Standards Act--

Overtime Compensation; and

(i) 52.223-6, Drug-Free Workplace, except for individuals.

PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-

FREE WORKPLACE

5. Section 23.504 is amended by revising the introductory text of

paragraph (a); revising paragraph (b); removing paragraph (c); and

redesignating paragraph (d) as (c) to read as follows:

23.504 Policy.

(a) No offeror other than an individual shall be considered a

responsible source (see 9.104-1(g) and 19.602- 1(a)(2)(i)) for a

contract that exceeds the simplified acquisition threshold, unless it

agrees that it will provide a drug-free workplace by--

* * * * *

(b) No individual shall be awarded a contract of any dollar value

unless that individual agrees that the individual will not engage in

the unlawful manufacture, distribution, dispensing, possession, or use

of a controlled

[[Page 31815]]

substance in the performance of the contract.

* * * * *

23.504 [Amended]

5b. In addition to the above, section 23.504 is amended by removing

``calendar'' from the following places:

(a) 23.504(a)(4)(ii);

(b) 23.504(a)(5);

(c) 23.504(a)(6) introductory text; and

(d) newly designated 23.504(c).

6. Section 23.505 is amended by revising the heading and the

introductory text of paragraph (a); in paragraph (a)(2) by removing ``;

or'' and inserting a period in its place; by removing paragraph (b),

redesignating (c) as (b) and revising the introductory text of newly

designated (b) to read as follows:

23.505 Contract clause.

(a) Contracting officers shall insert the clause at 52.223-6, Drug-

Free Workplace, except as provided in paragraph (b) of this section, in

solicitations and contracts--

* * * * *

(b) Contracting officers shall not insert the clause at 52.223-6,

Drug-Free Workplace, in solicitations and contracts, if--

* * * * *

7. Section 23.506 is amended by revising paragraph (d) to read as

follows:

23.506 Suspension of payments, termination of contract, and debarment

and suspension actions.

* * * * *

(d) The specific causes for suspension of contract payments,

termination of a contract for default, or suspension and debarment

are--

(1) The contractor has failed to comply with the requirements of

the clause at 52.223-6, Drug-Free Workplace; or

(2) The number of contractor employees convicted of violations of

criminal drug statutes occurring in the workplace indicates that the

contractor has failed to make a good faith effort to provide a drug-

free workplace.

* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.223-5 [Reserved]

8. Section 52.223-5 is removed and reserved.

52.223-6 [Amended]

9. Section 52.223-6 is amended in the introductory text by removing

``(b)''.

[FR Doc. 96-15271 Filed 6-19-96; 8:45 am]

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