Federal Acquisition Circular 90-46; Introduction

SUMMARY: This document summarizes the Federal Acquisition Regulation

(FAR) rules issued by the FAR Council in this Federal Acquisition

Circular (FAC) 90-46. Each rule follows this document in the order

listed below. A companion document, the Small Entity Compliance Guide,

follows this FAC and may be located on the internet at http://

www.gsa.gov/far/SECG.

DATES: For effective dates and comment dates, see separate documents

which follow.

FOR FURTHER INFORMATION CONTACT: The analyst whose name appears (in the

table below) in relation to each FAR case or subject area. For general

information, contact Beverly Fayson, Room 4037, GS Building,

Washington, DC 20405, (202) 501-4755. Please cite FAC 90-46 and

specific FAR case number(s).

SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-46 amends

the Federal Acquisition Regulation (FAR) as specified below:

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Item Subject FAR Case Analyst

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I.................. Gratuities....... 96-300 Linfield.

II................. Electronic 91-104 DeStefano.

Contracting.

III................ Office of Federal 94-008 O'Neill.

Procurement

Policy Letter 93-

1, Management

Oversight of

Service

Contracting.

IV................. Performance 93-603 DeStefano.

Incentives for

Fixed-Price

Contracts.

V.................. Federal 92-054B Linfield.

Compliance with

Right-to-Know

Laws and

Pollution

Prevention

Requirements

(Interim).

VI................. Buy American Act-- 91-119 Linfield.

Construction

(Grimberg

Decision).

VII................ Collection of 95-306 Klein.

Historically

Black Colleges

and Universities/

Minority

Institutions

Award Data.

VIII............... Allowability of 95-021 DeStefano.

Foreign Selling

Costs.

IX................. Independent 95-024 Olson.

Research and

Development/Bid

and Proposal

Costs in

Cooperative

Agreements.

X.................. Prompt Payment... 91-091 Olson.

XI................. Attorneys' Fees 96-016 O'Neill.

in GAO Protests.

XII................ Contractors' 94-605 Klein.

Purchasing

Systems Reviews.

XIII............... Performance-Based 96-005 Olson.

Payments.

XIV................ Technical .............. ................

Corrections.

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Item I--Gratuities (FAR Case 96-300)

The interim rule published as Item III of Federal Acquisition

Circular (FAC) 90-40 is converted to a final rule without change. The

rule amended FAR 3.202 and 52.203-3 to exempt solicitations and

contracts which do not exceed the simplified acquisition threshold from

the prescribed use of the ``Gratuities'' clause.

Item II--Electronic Contracting (FAR Case 91-104)

The interim rule published as Item II of FAC 90-29 is converted to

a final rule with amendments in Parts 5, 14, 15, and 52. The rule

facilitates the use of electronic data interchange in Government

contracting and complements the rule published as Item II of FAC 90-40

pertaining to the Federal Acquisition Computer Network.

Item III--Office of Federal Procurement Policy Letter 93-1, Management

Oversight of Service Contracting (FAR Case 94-008)

This final rule amends FAR 37.000 and 37.102, and adds a new

Subpart 37.5, to implement OFPP Policy Letter 93-1, Management

Oversight of Service Contracting. The policy letter provides

Governmentwide guiding principles which are intended to improve the

acquisition, management, and administration of service contracts. This

rule also amends FAR 9.505-3 and 35.017-2 to remove references to OMB

Circular A-120, Guidelines for the Use of Advisory and Assistance

Services, which was rescinded by OMB on November 19, 1993.

Item IV--Performance Incentives for Fixed-Price Contracts (FAR Case 93-

603)

This final rule amends FAR Parts 16 and 52 to permit the use of

award-fee provisions as performance incentives in fixed-price

contracts.

Item V--Federal Compliance With Right-To-Know Laws and Pollution

Prevention Requirements (FAR Case 92-054B)

This interim rule adds a new FAR Subpart 23.10, and a new clause at

52.223-5 to implement Executive Order (E.O.) 12856 of August 3, 1993,

Federal Compliance with Right-To-Know Laws and Pollution Prevention

Requirements. The E.O. requires that a contract performed on a Federal

facility shall provide that the contractor supply information on its

use of certain hazardous or toxic substances in the performance of the

contract. This information is required to enable Federal facilities to

comply with the reporting and emergency planning requirements of the

Pollution Prevention Act of 1990 and the Emergency Planning and

Community Right-To-Know Act of 1986.

Item VI--Buy American Act--Construction (Grimberg Decision) (FAR Case

91-119)

This final rule amends FAR Subpart 25.2 and the associated clauses

at 52.225-5 and 52.225-15 to add guidance on exceptions to the Buy

American Act, both pre-award and post-award. The rule adds two new

solicitation provisions at 52.225-12 and 52.225-13 for use in

solicitations for construction in the United States. These solicitation

provisions set forth procedures by which offerors may request

determinations regarding the inapplicability of the Buy American Act.

The rule also adds a new section at 25.206, which provides guidance

regarding instances of noncompliance with the Buy American Act.

[[Page 12691]]

Item VII--Collection of Historically Black Colleges and Universities/

Minority Institutions Award Data (FAR Case 95-306)

This final rule adds a new FAR Subpart 26.3 and a new solicitation

provision at 52.226-2 to implement Executive Order 12928, which

requires agencies to provide periodic reporting on the progress made in

award of contracts to Historically Black Colleges and Universities and

Minority Institutions.

Item VIII--Allowability of Foreign Selling Costs (FAR Case 95-021)

This final rule revises FAR 31.205-38(c)(2) by removing the ceiling

on allowable foreign selling costs. The rule also amends 31.205-1,

Public relations and advertising costs, by deleting reference to the

ceiling limitation, and further revises 31.205-38(c)(2) by deleting

obsolete language.

Item IX--Independent Research and Development/Bid and Proposal Costs in

Cooperative Agreements (FAR Case 95-024)

This final rule amends the cost principle at FAR 31.205-18,

Independent research and development (IR&D) and bid and proposal costs,

by removing from paragraph (e) the prohibition against treatment of

contractor IR&D contributions under NASA cooperative arrangements as

allowable indirect costs.

Item X--Prompt Payment (FAR Case 91-091)

This final rule amends FAR 32.102, Subpart 32.9, and related

clauses at 52.212-4, 52.232-5, 52.232-8, 52.232-25, 52.232-26, and

52.232-27 in order to implement changes made in OMB Circular A-125

(Revised), dated December 12, 1989, to comply with the Prompt Payment

Act Amendments of 1988 (Public Law 100-496). The rule also contains

amendments to clarify and simplify the FAR text and clauses.

Item XI--Attorneys' Fees in GAO Protests (FAR Case 96-016)

This final rule amends FAR 33.104 to clarify that the $150 hourly

cap on attorneys' fees applies only to those protests filed on or after

October 1, 1995. Protests filed with the General Accounting Office

prior to October 1, 1995, are not subject to the hourly cap on

attorneys' fees, in accordance with Sections 10001 and 10002 of the

Federal Acquisition Streamlining Act of 1994 (Public Law 103-355).

Item XII--Contractors' Purchasing Systems Reviews (FAR Case 94-605)

This final rule amends FAR 44.302 to (1) add a requirement for the

cognizant contract administration agency to determine the need for a

contractor purchasing system review (CPSR) based on, but not limited

to, the past performance of the contractor and volume, complexity, and

dollar value of the contractor's subcontracting activity; and (2)

delete the requirement for a CPSR to be performed initially and at

least every 3 years thereafter, for contractors exceeding a certain

sales level. Also, FAR sections 44.303 through 44.307 are amended to

conform to amendments at 44.302.

Item XIII--Performance-Based Payments (FAR Case 96-005)

This final rule amends FAR 52.232-32, Performance-Based Payments,

by adding paragraphs (f)(6) and (7) to address title to residual

material and liability for Government-furnished property, for

consistency with paragraphs (d)(6) and (7) of FAR 52.232-16, Progress

Payments.

Item XIV--Technical Corrections

Corrections have been made to Federal Acquisition Circular 90-44,

which appeared in the Federal Register at 61 FR 69286, December 31,

1996, to correct clause dates to correspond with the effective dates of

the rules, and Federal Acquisition Circular 90-45, published in the

Federal Register at 62 FR 224, January 2, 1997, to replace a reference

inadvertently omitted in the original document.

Dated: March 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

[FR Doc. 97-6309 Filed 3-14-97; 8:45 am]

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