CFR Part: "48 CFR Parts 12, 13, 32, 43, and 52"
RIN Number: "RIN 9000-AM45"
Citation: "78 FR 80382"
Document Number: "FAC 2005-72; FAR Case 2013-005; Item III; Docket 2013-0005, Sequence 1"
"Rules and Regulations"
SUMMARY: DoD, GSA, and
EFFECTIVE DATE: Effective:
FOR FURTHER INFORMATION CONTACT: Ms.
SUPPLEMENTARY INFORMATION: DoD, GSA, and
II. Discussion and Analysis
A. Summary of Significant Changes
No changes were made as a result of the public comments.
B. Analysis of Public Comments
1. Attachment of Clause to Licenses
Comment: The respondent believed that the clause does not reliably attach to licenses because of situations where an End User License Agreement (EULA) or Terms of Service (TOS) is passed through an intermediary contractor or subcontractor to the Government. The respondent recommended that the Government directly negotiate with major commercial software and service providers to ensure that the clause "is included in those providers' EULAs or TOSs with the Government and that the interim rule make clear that commercial items and software can be accepted only where such an agreement has been made directly with the licensor".
Response: The clause does attach to licenses. The clause is not limited to instances in which the Government has directly negotiated with the indemnitees. No change is made in the final rule.
2. Unintended Consequences
Comment: The respondent expressed concern that this rule could lead commercial companies to forego doing business with the Government. Not all contractors may be able to accept the risk re-allocation effected by the interim rule, according to the respondent.
Response: The interim rule became effective on
3. Alternative Solutions To Address the ADA Concerns
Comment: The respondent suggested two alternatives. The first was for the
Response: This type of additional guidance would not be included in the FAR. Development of this additional guidance is outside the purview of the Councils. No change is made in the final rule.
III. Executive Order 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all 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 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
IV. Regulatory Flexibility Act
DoD, GSA, and
This final rule is required to implement an opinion by the
The Chief Counsel for Advocacy of the
This rule will impact all small entities with a supply or service contract subject to a supplier license agreement. There may be a small beneficial impact on small entities because these revisions to the FAR will help save time and streamline processes since small entities will no longer have to individually renegotiate, on a prospective basis, a EULA, TOS, or similar agreement containing an indemnification provision. Further, clauses like open-ended, unrestricted indemnification clauses have generally been unenforceable against the Government, unless expressly authorized by statute, and the FAR is being revised to reflect this.
DoD, GSA and
There are currently 4,988 GSA Information-Technology Schedule 70 vendors. DoD, GSA and
DoD, GSA, and
There is no record keeping or reporting requirement for this rule.
Steps have been taken in this interim rule to minimize the impact on small entities which help to save them time and streamline their processes; for example, this would greatly reduce the requirement to negotiate all EULAs, TOS, or similar arrangements on a case-by-case basis.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the
V. Paperwork Reduction Act
The final rule does not contain any information collection requirements that require the approval of the
List of Subjects in 48 CFR Parts 12, 13, 32, 43, and 52
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending 48 CFR parts 12, 13, 32, 43, and 52, which was published in the
[FR Doc. 2013-31150 Filed 12-30-13;
BILLING CODE 6820-EP-P
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