DFARS Change Notice 19981209

DEPARTMENT OF DEFENSE

48 CFR Part 206

[DFARS Case 97-D324

Defense Federal Acquisition Regulation Supplement; Competition

Exception for International Agreements

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement has issued a final rule

amending the Defense Federal Acquisition Regulation Supplement (DFARS)

to implement Section 841(b) of the National Defense Authorization Act

for Fiscal Year 1998. Section 841(b) repeals the requirement for the

competition advocate to approve documentation prepared by the head of

the contracting activity, for use of other than competitive procedures,

when the terms of an international agreement have the effect of

requiring such procedures.

EFFECTIVE DATE: December 9, 1998.

FOR FURTHER INFORMATION CONTACT: Ms. Melissa Rider, Defense Acquisition

Regulations Council, PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense

Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0131; telefax

(703) 602-0350. Please cite DFARS Case 97-<strong>D324</strong>.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule revises DFARS 206.302-4 to implement Section 841(b)

of the National Defense Authorization Act for Fiscal Year 1998 (Pub. L.

105-85). Section 841(b) amends 10 U.S.C. 2304(f)(2)(E) to repeal the

requirement for the competition advocate to approve documentation

supporting the use of other than competitive procedures for an

acquisition, when the use of such procedures is based upon the terms of

an international agreement.

B. Regulatory Flexibility Act

The final rule does not constitute a significant revision within

the meaning of FAR 1.501 and Pub. L. 98-577 and publication of public

comment is not required. However, comments from small entities

concerning the affected DFARS subpart will be considered in accordance

with 5 U.S.C. 610. Such comments should cite DFARS Case 97-D324.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the final rule

does not impose any information collection requirements that require

the approval of the Office of Management and Budget under 44 U.S.C.

3501, et seq.

List of Subjects in 48 CFR Part 206

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Part 206 is amended as follows:

Final Rule

DFARS Case 97-D324

Requirement Under Competition Exception for International Agreements

PART 206--COMPETITION REQUIREMENTS

* * * * *

SUBPART 206.3--OTHER THAN FULL AND OPEN COMPETITION

* * * * *

206.302 Circumstances permitting other than full and open competition

* * * * *

206.302-4 International agreement.

(c) Limitations. Pursuant to 10 U.S.C. 2304(f)(2)(E), the justifications and approvals described in FAR 6.303 and 6.304 are not required if--

(i) T [t]he head of the contracting activity prepares a document which [that] describes the terms of an agreement or treaty or the written directions, such as a Letter of Offer and Acceptance, that have the effect of requiring the use of other than competitive procedures for the acquisition[.]; and

(ii) The document in paragraph (c)(i) of this subsection is approved by the competition advocate for the contracting activity.

DEPARTMENT OF DEFENSE

48 CFR Part 217

[DFARS Case 97-D319]

Defense Federal Acquisition Regulation Supplement; Waiver

Authority to Support Humanitarian or Peacekeeping Operations

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement has issued a final rule

amending the Defense Federal Acquisition Regulation Supplement (DFARS)

to implement Section 803 of the National Defense Authorization Act for

Fiscal Year 1998. Section 803 permits the head of an agency to waive

certain limitations on the use of undefinitized contract actions, if

the waiver is necessary to support a humanitarian or peacekeeping

operation.

EFFECTIVE DATE: December 9, 1998.

FOR FURTHER INFORMATION CONTACT:

Ms. Melissa Rider, Defense Acquisition Regulations Council,

PDUSD(A&amp;T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC

20301-3062. Telephone (703) 602-0131; telefax (703) 602-0350. Please

cite DFARS Case 97-D319.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule amends DFARS 217.7404-5 to implement Section 803 of

the National Defense Authorization Act for Fiscal Year 1998 (Pub. L.

105-85). Section 803 amends the limitations at 10 U.S.C. 2326(b)(4)

pertaining to the use of undefinitized contract actions. Editorial

changes are made at 217.7404-3.

B. Regulatory Flexibility Act

The final rule does not constitute a significant revision within

the meaning of FAR 1.501 and Pub. L. 98-577 and publication for public

comment is not required. However, comments from small entities

concerning the affected DFARS subpart will be considered in accordance

with 5 U.S.C. 610. Such comments should cite DFARS Case 97-D319.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the final rule

does not impose any information collection requirements that require

the approval of the Office of Management and Budget under 44 U.S.C.

3501, et seq.

List of Subjects in 48 CFR Part 217

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Part 217 is amended as follows:

Final Rule

DFARS Case 97-D319

Waiver Authority to Support Humanitarian or Peacekeeping Operations

PART 217--SPECIAL CONTRACTING METHODS

* * * * *

SUBPART 217.74--UNDEFINITIZED CONTRACT ACTIONS

* * * * *

217.7404 Limitations.

* * * * *

217.7404-2 Price ceiling.

UCAs shall include a not-to-exceed price.

217.7404-3 Definitization schedule.

(a) UCAs shall contain definitization schedules which [that] provide for definitization by the earlier of the following dates--

(1) The date which [that] is 180 days after issuance of the action (this date may be extended but may not exceed the date which [that] is 180 days after the contractor submits a qualifying proposal); or

(2) The date on which the amount of funds obligated under the contract action is equal to more than 50 percent of the not-to-exceed price.

(b) Submission of a qualifying proposal in accordance with the definitization schedule is a material element of the contract. If the contractor does not submit a timely qualifying proposal;[,] the contacting officer may suspend or reduce progress payments under FAR 32.503-6, or take other appropriate action.

217.7404-4 Limitations on obligations.

The Government shall not obligate more than 50 percent of the not-to-exceed price before definitization. However, if a contractor submits a qualifying proposal before 50 percent of the not-to-exceed price has been obligated by the Government, then the limitation on obligations before definitization may be increased to no more than 75 percent (see 232.102-70 for coverage on provisional delivery payments).

217.7404-5 Exceptions.

(a) The limitations in 217.7404-2, [217.7404]-3, and [217.7404]-4 do not apply to UCAs for the purchase of initial spares.

(b) The head of an agency may waive the limitations in 217.7404-2, [217.7404]-3, and [217.7404]-4 for UCAs if the head of the agency determines that the waiver is necessary to support a [--

(1) A] contingency operation [as defined in 10 U.S.C. 101(a)(13); or

(2) A humanitarian or peacekeeping operation as defined in 10 U.S.C. 2302(7)].

* * * * *

DEPARTMENT OF DEFENSE

48 CFR Parts 223 and 252

[DFARS Case 98-D301]

Defense Federal Acquisition Regulation Supplement; Hazardous

Waste Disposal

AGENCY: Department of Defense (DoD.)

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement has issued a final rule

amending the Defense Federal Acquisition Regulation Supplement (DFARS)

to remove guidance pertaining to contracts for the offsite treatment or

disposal of hazardous waste from defense facilities. The statute upon

which this guidance was based applies only to contracts entered into

during fiscal years 1992 through 1996.

EFFECTIVE DATE: December 9, 1998.

FOR FURTHER INFORMATION CONTACT:

Mr. Michael Pelkey, Defense Acquisition Regulations Council, PDUSD

(A&amp;T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-

3062. Telephone (703) 602-0131; telefax (703) 602-0350. Please cite

DFARS Case 98-D301.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule removes DFARS Subpart 223.70 and the clause at

DFARS 252.223-7005, which implemented 10 U.S.C. 2708, Contracts for

handling hazardous waste from defense facilities. 10 U.S.C. 2708

applies only to contracts entered into during fiscal years 1992 through

1996.

B. Regulatory Flexibility Act

The final rule does not constitute a significant revision within

the meaning of FAR 1.501 and Pub. L. 98-577 and publication for public

comment is not required. However, comments from small entities

concerning the affected DFARS subpart will be considered in accordance

with 5 U.S.C. 610. Such comments should cite DFARS Case 98-D301.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the final rule

does not impose any information collection requirements that 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 223 and 252

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Parts 223 and 252 are amended as follows:

1. The authority citation for 48 CFR Parts 223 and 252 continues to

read as follows:

DFARS Case 98-D301

Hazardous Waste Disposal

Final Rule

PART 223-ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

* * * * *

SUBPART 223.70-[Reserved.]HAZARDOUS WASTE DISPOSAL

223.7000 Scope of subpart.

This subpart implements Section 331 of the Defense Authorization Act for Fiscal Year 1992 (Pub. L. 102-190) and similar sections in subsequent Defense authorization acts.

223.7001 Definitions.

As used in this subpart-

223.7002 Contract clause.

* * * * *

252.223-7005 [Reserved.] Hazardous Waste Liability.

As prescribed in 223.7002, use the following clause:

HAZARDOUS WASTE LIABILITY (OCT 1992)

(End of clause)

DEPARTMENT OF DEFENSE

48 CFR Part 237

[DFARS Case 97-D328]

Defense Federal Acquisition Regulation Supplement; Service

Contracts that Cross Fiscal Years

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement has issued a final rule

amending the Defense Federal Acquisition Regulation Supplement (DFARS)

to remove obsolete guidance pertaining to service contracts that cross

fiscal years. Section 801 of the National Defense Authorization Act for

Fiscal Year 1998 expanded the statutory authority to enter into such

contracts. Federal Acquisition Circular 97-09, dated October 30, 1998,

incorporated current guidance on this subject into the Federal

Acquisition Regulation.

EFFECTIVE DATE: December 9, 1998.

FOR FURTHER INFORMATION CONTACT:

Mr. Michael Pelkey, Defense Acquisition Regulations Council, PDUSD

(A&amp;T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-

3062. Telephone (703) 602-0131; telefax (703) 602-0350. Please cite

DFARS Case 97-D328.

SUPPLEMENTARY INFORMATION:

A. Background

Section 801 of the National Defense Authorization Act for Fiscal

Year 1998 (Pub. L. 105-85) amended 10 U.S.C. 2410a to expand the

authority pertaining to service contracts that cross fiscal years. Item

VIII of Federal Acquisition Circular 97-09 (63 FR 58600, October 30,

1998) amended the Federal Acquisition Regulation to implement Section

801. This final rule revises DFARS 237.106 to remove obsolete guidance

pertaining to service contracts that cross fiscal years.

B. Regulatory Flexibility Act

The final rule does not constitute a significant revision within

the meaning of FAR 1.501 and Pub. L. 98-577 and publication for public

comment is not required. However, comments from small entities

concerning the affected DFARS subpart will be considered in accordance

with 5 U.S.C. 610. Such comments should cite DFARS Case 97-D328.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the final rule

does not impose any information collection requirements that require

the approval of the Office of Management and Budget under 44 U.S.C.

3501, et seq.

List of Subjects in 48 CFR Part 237

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Part 237 is amended as follows:

DFARS Case 97-D328

Reporting of Service Contracts that Cross Fiscal Years

Final Rule

237.106 Funding and term of service contracts.