DFARS CHANGE NOTICE, 19990930

DEPARTMENT OF DEFENSE

48 CFR Parts 205, 206, 217, 219, 225, 226, 236, 252, and 253

[DFARS Case 98-D007]

Defense Federal Acquisition Regulation Supplement; Reform of Affirmative Action in Federal Procurement

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) policy concerning programs for small disadvantaged business (SDB) concerns. The amendments conform to a Department of Justice (DoJ) proposal to reform affirmative action in Federal procurement, and are consistent with the changes made to the Federal Acquisition Regulation (FAR) in Federal Acquisition Circulars (FACs) 97-06 and 97-13. DoJ's proposal is designed to ensure compliance

with the constitutional standards established by the Supreme Court in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).

EFFECTIVE DATE: October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, Defense Acquisition Regulations Council, PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; telefax (703) 602-0350. Please cite DFARS Case 98-D007.

SUPPLEMENTARY INFORMATION:

A. Background

This rule finalizes, with changes, the interim rule published at 63 FR 41972 on August 6, 1998. The interim rule was issued to conform the DFARS to the interim FAR rule published in FAC 97-06, at 63 FR 35719 on June 30, 1998, pertaining to reform of affirmative action in Federal

procurement. A final FAR rule on this subject was published in FAC 97-13, at 64 FR 36222 on July 2, 1999, and will become effective on October 1, 1999.

Two sources submitted comments on the interim DFARS rule published on August 6, 1998. All comments were considered in the development of the final rule. The final rule differs from the interim rule in that it (1) amends DFARS 226.7008(b) to remove language requiring use of the

provision at FAR 52.226-2 when the clause at FAR 52.219-23 is used, since FAC 97-13 added this requirement to the FAR; and (2) removes the provision at 252.226-7001, since this provision duplicates the provision at FAR 52.226-2.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

DoD certifies that this final rule will not 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., because most of the changes merely conform the DFARS to the FAR rules in FACs 97-06 and 97-13. Two source selection considerations for SDB concerns currently in the DFARS, but not in the FAR, are amended by this rule to conform to the DoJ model: Leader company contracting

(DFARS 217.401); and architect-engineer (A-E) services (DFARS 236.602). These two changes are not expected to have a significant economic impact on a substantial number of small entities, since (1) leader company contracting is infrequently used by DoD; and (2) the primary factor in A-E selection is the determination of the most highly qualified firm; the SDB consideration is one of several secondary source selection factors.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the 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 205, 206, 217, 219, 225, 226, 236, 252, and 253

Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Interim Rule Adopted as Final With Changes

Accordingly, the interim rule amending 48 CFR parts 205, 206, 217, 219, 225, 226, 236, 252, and 253, which was published at 63 FR 41972 on August 6, 1998, and amended at 63 FR 64427 on November 20, 1998, is adopted as a final rule with the following changes:

Reform of Affirmative Action in Federal Procurement

DFARS Case 98-D007

Final Rule

PART 226-OTHER SOCIOECONOMIC PROGRAMS

* * * * *

226.7008 Solicitation provision and contract clause.

* * * * *

(b) Use the provision at FAR 52.226-2, Historically Black College or University and Minority Institution Representation, in solicitations set aside for HBCU/MIs and in solicitations that contain the clause at FAR 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns.

PART 252-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

252.226-7001 Historically Black College or University and Minority Institution Status.

As prescribed in 226.7008(b), use the following provision:

HISTORICALLY BLACK COLLEGE OR UNIVERSITY AND MINORITY INSTITUTION STATUS (JAN 1997)

(a) Definitions.

"Historically black colleges and universities," as used in this provision, means institutions determined by the Secretary of Education to meet the requirements of 34 CFR Section 608.2. The term also means any nonprofit research institution that was an integral part of such a college or university before November 14, 1986.

"Minority institutions," as used in this provision, means institutions meeting the requirements of Section 1046(3) of the Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)). The term also includes Hispanic serving institutions as defined in Section 316(b)(1) of such Act (20 U.S.C. 1059c(b)(1)).

(b) Status. If applicable, the offeror shall check the appropriate space below:

_____ A historically black college or university.

_____ A minority institution.

(End of provision)

DFARS Case 98-D021 - Effective October 1, 1999.

DEPARTMENT OF DEFENSE

48 CFR Parts 215, 217, 219, 226, 236, 252, and Appendix I to Chapter 2

[DFARS Case 98-D021]

Defense Federal Acquisition Regulation Supplement; Reform of Affirmative Action in Federal Procurement, Part II

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement is adopting as final, without change, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) policy concerning programs for small disadvantaged business (SDB) concerns. The amendments conform

to a Department of Justice (DoJ) proposal to reform affirmative action in Federal procurement, and are consistent with the changes made to the Federal Acquisition Regulation (FAR) in Federal Acquisition Circulars (FACs) 97-07 and 97-13. DoJ's proposal is designed to ensure compliance

with the constitutional standards established by the Supreme Court in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).

EFFECTIVE DATE: October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, Defense Acquisition Regulations Council, PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; telefax (703) 602-0350. Please

cite DFARS Case 98-D021.

SUPPLEMENTARY INFORMATION:

A. Background

This rule finalizes, without change, the interim rule published at 63 FR 64427 on November 20, 1998. The interim rule was issued to conform the DFARS to the interim FAR rule published in FAC 97-07, at 63 FR 36120 on July 1, 1998, pertaining to reform of affirmative action in Federal procurement. A final FAR rule on this subject was published in FAC 97-13, at 64 FR 36222 on July 2, 1999, and will become effective on October 1, 1999.

No comments were received in response to the interim DFARS rule published on November 20, 1998. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

DoD certifies that this final rule will not have a significant economic impacton a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because most of the changes merely conform the DFARS to the FAR rule in FAC 97-07. Two

source selection considerations for SDB concerns currently in the DFARS, but not in the FAR, are amended by this rule to conform to the DoJ model: Leader company contracting (DFARS 217.401); and architect-engineer (A-E) services (DFARS 236.602). These two changes are not

expected to have a significant economic impact on a substantial number of small entities, since (1) leader company contracting is infrequently used by DoD; and (2) the primary factor in A-E selection is the determination of the most highly qualified firm; the SDB consideration

is one of several secondary source selection factors.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the 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 215, 217, 219, 226, 236, and 252

Government procurement.

Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR parts 215, 217, 219, 226, 236, 252, and Appendix I to Chapter 2, which has published at 63 FR 64427 on November 20, 1998, is adopted as a final rule without change.

DEPARTMENT OF DEFENSE

48 CFR Parts 222 and 252

[DFARS Case 97-D318]

Defense Federal Acquisition Regulation Supplement; Contractor Use or Nonimmigrant Aliens--Guam

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Director of Defense Procurement is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS). The rule addresses statutory prohibitions against the performance of work by nonimmigrant aliens under DoD contracts for military construction or base operations support on Guam.

DATES: September 30, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition

Regulations Council, PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0288; telefax (703) 602-0350. Please cite DFARS Case 97-D318.

SUPPLEMENTARY INFORMATION:

A. Background

This rule finalizes, with changes, the interim rule published at 63 FR 31935 on June 11, 1998. The interim rule added a new DFARS Subpart 222.73 and a new contract clause at DFARS 252.222-7005 to implement Section 390 of the National Defense Authorization Act for Fiscal Year

1998 (Public Law 105-85). Section 390 provides that each DoD contract for base operations support to be performed on Guam must contain a condition that work under the contract may not be performed by any alien who is issued a visa or otherwise provided nonimmigrant status under Section 101(a) (15) (H) (ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (15) (H) (ii)).

Four sources submitted comments on the interim rule. DoD considered all comments in the development of the final rule. The final rule differs from the interim rule in that it incorporates the similar restrictions of 10 U.S.C. 2864 pertaining to military construction contracts on Guam, and clarifies that the prohibition against performance of work by nonimmigrant aliens does not apply to lawfully admitted citizens of the freely associated states of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

DoD certifies that this final rule will not 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., because the rule applies only to military construction and base operations support contracts to be performed on Guam.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the 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 222 and 252

Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Interim Rule Adopted as Final With Changes

Accordingly, the interim rule amending 48 CFR parts 222 and 252, which was published at 63 FR 31935 on June 11, 1998, is adopted as a final rule with the following changes:

Contractor Use of Nonimmigrant Aliens-Guam

DFARS Case 97-D318

Final Rule

PART 222-APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

* * * * *

SUBPART 222.73-BASE OPERATIONS SUPPORT FOR MILITARY INSTALLATIONS [LIMITATIONS APPLICABLE TO CONTRACTS PERFORMED] ON GUAM

222.7300 Scope of subpart.

(a) This subpart implements[-

(1) 10 U.S.C. 2864; and

(2)] Section 390 of the National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105-85).

(b) This subpart applies to base operations support contracts that-

(1) Are to be performed on Guam; and

[(1) Contracts for military construction projects on Guam; and

(2) Contracts for base operations support on Guam that-

(i) Are awarded as a result of a competition conducted under OMB Circular A-76; and

(ii)](2) Are entered into or modified on or after November 18, 1997.

222.7301 General [Prohibition on use of nonimmigrant aliens].

Work under a contract for base operations support on Guam may not be performed by any alien who is issued a visa or otherwise provided nonimmigrant status under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15) (H)(ii)).

[(a) Any alien who is issued a visa or otherwise provided nonimmigrant status under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is prohibited from performing work under a contract for-

(1) A military construction project on Guam; or

(2) Base operations support on Guam.

(b) Lawfully admitted citizens of the freely associated states of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau are not subject to the prohibition in paragraph (a) of this section.

222.7302 Exception.

The prohibition in 222.7301(a)(1) does not apply to a military construction project if-

(a) There is no acceptable offer in response to a solicitation for the project;

(b) The Secretary concerned makes a determination that the prohibition is a significant deterrent to obtaining offers on the project; and

(c) Another solicitation is issued for the project.]

222.7302[3] Contract clause.

Use the clause at 252.222-7005, Prohibition on Use of Nonimmigrant Aliens-Guam, in all solicitations and contracts subject to this subpart[, except those issued in accordance with 222.7302].

* * * * *

PART 252-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

252.222-7005 Prohibition on Use of Nonimmigrant Aliens-Guam.

As prescribed in 222.7302[3], use the following clause:

PROHIBITION ON USE OF NONIMMIGRANT ALIENS-GUAM

(JUN 1998)[(SEP 1999)]

The work required by this contract shall not be performed by any alien who is issued a visa or otherwise provided nonimmigrant status under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)). [This prohibition does not apply to the performance of work by lawfully admitted citizens of the freely associated states of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau.]

(End of clause)

------------------------------------------------------------------------------------------------------------

DEPARTMENT OF DEFENSE

48 CFR Part 204

[DFARS Case 99-D011/98-D017]

Defense Federal Acquisition Regulation Supplement; Fiscal Year 2000 Contract Action Reporting Requirements; Correction

AGENCY: Department of Defense, (DoD).

ACTION: Correction to the final rule.

SUMMARY: DoD is issuing a correction to the final rule published at 64 FR 45197-45207 on August 19, 1999. The correction reflects the change in name of the ``Defense Fuel Supply Center'' to the ``Defense Energy Support Center''.

EFFECTIVE DATE: October 1, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, (703) 602-0311.

Correction

In the issue of Thursday, August 19, 1999, on page 45198, in the first column, in 204.670-2(c)(7)(ii), in the first line, remove the words ``Fuel Supply'' and add in their place the words ``Energy

Support''.Michele P. Peterson,Executive Editor, Defense Acquisition Regulations Council.

Fiscal Year 2000 Contract Action Reporting Requirements

DFARS Case 99-D011/98-D017

Final Rule

PART 204-ADMINISTRATIVE MATTERS

* * * * *

SUBPART 204.6-CONTRACT REPORTING

* * * * *

204.670-2 Reportable contracting actions.

(ii) Foreign military sales;

(iii) Orders or modifications under Federal schedules;

(iv) Actions with government agencies;

(v) Actions with non-U.S. business firms; and

(vi) Actions where the place of performance is other than the United States and its outlying areas.]

(2) Actions that obligate or deobligate more than $25,000, but not more than $200,000, and support-

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

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

(c) Summarize on the monthly DD Form 1057, in accordance with the instructions in 253.204-71(a)(3), contracting actions that-

agreements];[.]

* * * * *

204.670-9 Reporting of individual contracting actions of $25,000 or less.

Under the Small Business Competitiveness Demonstration Program (see FAR Subpart 19.10), contracting actions of $25,000 or less in four designated industry groups must be reported in the same manner as if the action were in excess of $25,000.

(1) Contracting actions of $500 or less.

(2) Foreign military sales.

* * * * *

PART 219-SMALL BUSINESS PROGRAMS

* * * * *

SUBPART 219.10-SMALL BUSINESS COMPETITIVENESS DEMONSTRATION PROGRAM

* * * * *

219.1006 Procedures.

* * * * *

(d) Reporting requirements are at 204.670-9[2].

* * * * *

PART 253-FORMS

* * * * *

SUBPART 253.2--PRESCRIPTION OF FORMS

253.204 Administrative matters.

253.204-70 DD Form 350, Individual Contracting Action Report.

Policy on use of a DD Form 350 is in 204.670-2. This subsection 253.204-70 contains instructions for completion of Parts A through F of the DD Form 350. Paragraph (g) of this subsection contains special instructions for completing a DD Form 350 for an action of $25,000 or less under the Small Business Competitiveness Demonstration Program.

[(2)] For all actions with UNICOR/Federal Prison Industries, use DUNS number 62-662-7459.

[(3) For U.S. Army Contracting Command, Europe, consolidated reporting of vouchers for utilities from municipalities, use DUNS number 15-390-6193 (see 204.670-6(b)(1)).]

[(1)] Enter code 3 when the contracting action is the award or modification of a definitive contract or a modification that definitizes a contract. Code 3 includes the following:

[(A) The action resulted from a solicitation issued on or after April 1, 1985, or is a modification coded A in Block B13D issued on or after April 1, 1985; and

(B) Neither code C nor code D applies.]

Commercial Items.

[(A) BLOCK D1A, TYPE OF ENTITY.] Enter one of the following codes:

(1)] t[T]he [contractor's] response to FAR 52.204-5, 52.212-3(c), or 52.219-1(b) indicates that it is a women-owned business[; or

(2) Block B13A is coded 6 and the Federal schedule indicates that the contractor is a women-owned business].

(2) Block B13A is coded 6 and the Federal schedule indicates that the contractor is not a women-owned business].

[(i) Enter code Y in Block E1 if the contracting action exceeds $200,000 and is in support of-

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

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

(ii) Otherwise, leave Block E1 blank.]

253.204-71 DD Form 1057, Monthly Contracting Summary of Actions $25,000 or Less.

* * * * *

(i) Enter the total number and dollar value of contracting actions that were awarded to HUBZone small business concerns in each of the following categories:

* * * * *