DEFENSE FAR SUPPLEMENT (DFARS) Change Notice 20041122

DoD published the following changes and proposed changes to the DFARS on November 22, 2004. 

Final Rules – DFARS Transformation

The following changes are a result of DFARS Transformation, which is a major DoD initiative to dramatically change the purpose and content of the DFARS.  Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.  

Protection of Privacy and Freedom of Information (DFARS Case 2003-D038)

FR Doc 04-25827

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Rules and Regulations]

[Page 67856]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-14]

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DEPARTMENT OF DEFENSE

48 CFR Part 224

[DFARS Case 2003-D038]

Defense Federal Acquisition Regulation Supplement; Protection of Privacy and Freedom of Information

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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

SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to delete text pertaining to the applicability of the Privacy Act to certain contractor records. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Effective November 22, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Euclides Barrera, Defense Acquisition Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0296; facsimile (703) 602-0350. Please cite DFARS Case 2003-D038.

SUPPLEMENTARY INFORMATION:

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The rule deletes DFARS 224.102, which specifies that the Privacy Act (5 U.S.C. 552a) does not apply to certain contractor records. The DFARS text is unnecessary, because this issue is adequately addressed in DoD Regulation 5400.11-R, Department of Defense Privacy Program, which is referenced in DFARS 224.103.

DoD published a proposed rule at 69 FR 8152 on February 23, 2004. DoD received one comment in response to the proposed rule, and that comment supported the rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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 deletion of the DFARS text does not represent a change in DoD policy. Applicability of the Privacy Act is adequately addressed in other DoD publications.

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 Part 224

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

0

Therefore, 48 CFR part 224 is amended as follows:

Protection of Privacy and Freedom of Information

DFARS Case 2003-D038

Final Rule

PART 224—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

SUBPART 224.1—PROTECTION OF INDIVIDUAL PRIVACY

224.102 General.

The Act does not apply to—

(1) Systems of records the contractor maintains on its employees; or

(2) The records generated by a State or private educational organization under a contract with the Government to provide training, when the records (admission forms, grade reports) are similar to and commingled with those maintained on other students.

224.103 Procedures.

(b)(2) DoD rules and regulations are contained in DoDD 5400.11, Department of Defense Privacy Program, and DoD 5400.11-R, Department of Defense Privacy Program.

* * * * *

Contractor Use of Government Supply Sources (DFARS Case 2003-D045)

FR Doc 04-25826

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Rules and Regulations]

[Page 67858]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-17]

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DEPARTMENT OF DEFENSE

48 CFR Parts 251 and 252

[DFARS Case 2003-D045]

Defense Federal Acquisition Regulation Supplement; Contractor Use of Government Supply Sources

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update text pertaining to contractor use of Government supply sources. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Effective November 22, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Steven Cohen, Defense Acquisition Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0293; facsimile (703) 602-0350. Please cite DFARS Case 2003-D045.

SUPPLEMENTARY INFORMATION:

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The DFARS changes include--

Deletion of text at DFARS 251.102 containing procedures for authorizing a contractor to use Government supply sources. Text on this subject has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi

.

Deletion of text at DFARS 251.105 regarding contractor payment for purchases from Government supply sources. This subject is addressed in the clause at DFARS 252.251-7000 as amended by this rule.

DoD published a proposed rule at 69 FR 8159 on February 23, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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 DFARS changes address procedural matters that apply only when a contractor is authorized to use Government supply sources.

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 251 and 252

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

0

Therefore, 48 CFR Parts 251 and 252 are amended as follows:

Contractor Use of Government Supply Sources

DFARS Case 2003-D045

Final Rule

(Text that is stricken and highlighted will be relocated

to Procedures, Guidance, and Information (PGI))

PART 251—USE OF GOVERNMENT SOURCES BY CONTRACTORS

SUBPART 251.1--CONTRACTOR USE OF GOVERNMENT SUPPLY SOURCES

251.102 Authorization to use Government supply sources.

(e) Use the format in Table 51-1, Authorization to Purchase from Government Supply Sources. Specify the terms of the purchase, including contractor acceptance of any Government materiel, payment terms, and the addresses required by paragraph (e) of the clause at 252.251-7000, Ordering from Government Supply Sources. [When authorizing contractor use of Government supply sources, follow the procedures at PGI 251.102.]

(3)(ii) In addition to the procedure and form authorized by FAR 51.102(e)(3)(ii), contractors may [The contracting officer may also authorize the contractor to] use the DD Form 1155 when requisitioning from the Department of Veterans Affairs.

(f) The authorizing agency is also responsible for promptly considering requests of the DoD supply source for authority to refuse to honor requisitions from a contractor that is indebted to DoD and has failed to pay proper invoices in a timely manner.

TABLE 51-1, AUTHORIZATION TO PURCHASE FROM GOVERNMENT SUPPLY SOURCES

SUBJECT: Authorization to Purchase from Government Supply Sources

_______________________ ______________ (Contractor's Name)

____________________________________________ (Contractor's Address)

1. You are hereby authorized to use Government sources in performing Contract No. __________________ for [insert applicable military department or defense agency], as follows: [Insert applicable purchasing authority given to the contractor.]

2.a. Purchase Orders Under Federal Supply Schedules or Personal Property Rehabilitation Price Schedules. Place orders in accordance with the terms and conditions of the attached Schedule(s) and this authorization. Attach a copy of this authorization to the order (unless a copy was previously furnished to the Federal Supply Schedule or Personal Property Rehabilitation Price Schedule contractor). Insert the following statement in the order:

b. Requisitioning from the General Services Administration (GSA) or the Department of Defense (DoD). Place orders in accordance with this authorization and, as appropriate, the following:

(1) Federal Standard Requisitioning and Issue Procedures (FEDSTRIP) (GSA FEDSTRIP Operating Guide: FPMR 101-26.2 (41 CFR 101-26.2)). Copies are available from the Superintendent of Documents, Government Printing Office, Washington, DC 20402; telephone (202) 512-1800; facsimile (202) 512-2250.

(2) Military Standard Requisitioning and Issue Procedures (MILSTRIP) (DoD 4000.25-1-M). Copies are available from the Defense Logistics Agency, Administrative Support Center East, ATTN: ASCE-WS, 14 Dedication Drive, Suite 3, POD 43, New Cumberland, PA 17070-5011; telephone 1-888-DLA-PUBS(352-7827), or (717) 770-6034; facsimile (717) 770-4817.

(c) Enterprise Software Initiative. Place orders in accordance with the terms and conditions of the attached Enterprise Software Agreement(s), or instructions for obtaining commercial software or software maintenance from Enterprise Software Initiative inventories, and this authorization. Attach a copy of this authorization to the order (unless a copy was previously furnished to the Enterprise Software Agreement contractor). Insert the following statement in the order:

This order is placed under written authorization from __________________________ dated___________ (*___________). In the event of any inconsistency between the terms and conditions of this order, and those of the Enterprise Software Agreement, the latter will govern.

3. ***

4. This authority is not transferable or assignable.

5. The DoD Activity Address Directory (DoDAAD) (DoD 4000.25-6-M) Activity Address Code** to which this Authorization applies is ___________.

6. This Authorization expires _______________________________.

_____________________________

(Contracting Officer)

* Insert “a copy of which is attached,” “a copy of which you have on file,” or other suitable language, as appropriate.

** The sponsoring service assumes responsibility for monitoring and controlling all activity address codes used in the letters of authority.

*** Insert other provisions, as necessary.

 

251.105 Payment for shipments.

Contractor payments for purchases from DoD supply sources are due within 30 days of the date of a proper invoice (see FAR 32.902 for definition of “due date” and “payment date;” also see FAR 32.905(e)).

251.107 Contract clause.

Use the clause at 252.251-7000, Ordering From Government Supply Sources, in solicitations and contracts which include the clause at FAR 52.251-1, Government Supply Sources.

* * * * *

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

252.251-7000 Ordering From Government Supply Sources.

As prescribed in 251.107, use the following clause:

ORDERING FROM GOVERNMENT SUPPLY SOURCES (OCT 2002 [NOV 2004])

* * * * *

(c) When placing orders for Government stock, the Contractor shall—

* * * * *

(4) Pay invoices from Government supply sources promptly. For purchases made from DoD supply sources, this means within 30 days of the date of a proper invoice (see also Defense Federal Acquisition Regulation Supplement (DFARS) 251.105). [The Contractor shall annotate each invoice with the date of receipt.] For purposes of computing interest for late Contractor payments, the Government’s invoice is deemed to be a demand for payment in accordance with the Interest clause of this contract. The Contractor’s failure to pay may also result in the DoD supply source refusing to honor the requisition (see DFARS 251.102(f)) or in the Contracting Officer terminating the Contractor’s authorization to use DoD supply sources. In the event the Contracting Officer decides to terminate the authorization due to the Contractor’s failure to pay in a timely manner, the Contracting Officer shall provide the Contractor with prompt written notice of the intent to terminate the authorization and the basis for such action. The Contractor shall have 10 days after receipt of the Government’s notice in which to provide additional information as to why the authorization should not be terminated. The termination shall not provide the Contractor with an excusable delay for failure to perform or complete the contract in accordance with the terms of the contract, and the Contractor shall be solely responsible for any increased costs.

* * * * *

Contractor Use of Government Supply Sources

DFARS Case 2003-D045

Procedures, Guidance, and Information

PGI 251—USE OF GOVERNMENT SOURCES BY CONTRACTORS

PGI 251.1--CONTRACTOR USE OF GOVERNMENT SUPPLY SOURCES

PGI 251.102 Authorization to use Government supply sources.

Use a format substantially the same as the following when authorizing contractor use of Government Supply Sources. Specify the terms of the purchase, including contractor acceptance of any Government materiel, payment terms, and the addresses required by paragraph (e) of the clause at 252.251-7000, Ordering from Government Supply Sources.

AUTHORIZATION TO PURCHASE FROM GOVERNMENT SUPPLY SOURCES

(SAMPLE FORMAT)

SUBJECT: Authorization to Purchase from Government Supply Sources

______________________________________________ (Contractor's Name)

____________________________________________ (Contractor's Address)

1. You are hereby authorized to use Government sources in performing Contract No. __________________ for [insert applicable military department or defense agency], as follows: [Insert applicable purchasing authority given to the contractor.]

2.a. Purchase Orders Under Federal Supply Schedules or Personal Property Rehabilitation Price Schedules. Place orders in accordance with the terms and conditions of the attached Schedule(s) and this authorization. Attach a copy of this authorization to the order (unless a copy was previously furnished to the Federal Supply Schedule or Personal Property Rehabilitation Price Schedule contractor). Insert the following statement in the order:

b. Requisitioning from the General Services Administration (GSA) or the Department of Defense (DoD). Place orders in accordance with this authorization and, as appropriate, the following:

(1) Federal Standard Requisitioning and Issue Procedures (FEDSTRIP) (GSA FEDSTRIP Operating Guide: FPMR 101-26.2 (41 CFR 101-26.2)). Copies are available from the Superintendent of Documents, Government Printing Office, Washington, DC 20402; telephone (202) 512-1800; facsimile (202) 512-2250.

(2) Military Standard Requisitioning and Issue Procedures (MILSTRIP) (DoD 4000.25-1-M). Copies are available from the Defense Logistics Agency, Administrative Support Center East, ATTN: ASCE-WS, 14 Dedication Drive, Suite 3, POD 43, New Cumberland, PA 17070-5011; telephone 1-888-DLA-PUBS(352-7827), or (717) 770-6034; facsimile (717) 770-4817.

(c) Enterprise Software Initiative. Place orders in accordance with the terms and conditions of the attached Enterprise Software Agreement(s), or instructions for obtaining commercial software or software maintenance from Enterprise Software Initiative inventories, and this authorization. Attach a copy of this authorization to the order (unless a copy was previously furnished to the Enterprise Software Agreement contractor). Insert the following statement in the order:

This order is placed under written authorization from __________________________ dated___________ (*___________). In the event of any inconsistency between the terms and conditions of this order, and those of the Enterprise Software Agreement, the latter will govern.

3. ***

4. This authority is not transferable or assignable.

5. The DoD Activity Address Directory (DoDAAD) (DoD 4000.25-6-M) Activity Address Code** to which this Authorization applies is ___________.

6. This Authorization expires _______________________________.

_____________________________

(Contracting Officer)

* Insert “a copy of which is attached,” “a copy of which you have on file,” or other suitable language, as appropriate.

** The sponsoring service assumes responsibility for monitoring and controlling all activity address codes used in the letters of authority.

*** Insert other provisions, as necessary.

Removal of Obsolete Research and Development Contracting Procedures (DFARS Case 2003-D058) 

FR Doc 04-25824

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Rules and Regulations]

[Page 67857-67858]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-16]

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DEPARTMENT OF DEFENSE

48 CFR Part 235

[DFARS Case 2003-D058]

Defense Federal Acquisition Regulation Supplement; Removal of Obsolete Research and Development Contracting Procedures

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to delete obsolete procedures for research and development contracting. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Effective November 22, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Thaddeus Godlewski, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-2022; facsimile (703) 602-0350. Please cite DFARS Case 2003-D058.

SUPPLEMENTARY INFORMATION:

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative. The rule deletes DFARS Subpart 235.70, Research and Development Streamlined Contracting Procedures. This subpart contains procedures for acquiring research and development using a standard solicitation and contract format and the capabilities of the World Wide Web. These procedures have become obsolete, due to further advances in technology since their creation.

DoD published a proposed rule at 69 FR 8157 on February 23, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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 deletes research and development contracting procedures that are no longer in use.

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.

[[Page 67858]]

List of Subjects in 48 CFR Part 235

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

0

Therefore, 48 CFR Part 235 is amended as follows:

Removal of Obsolete Research and

Development Contracting Procedures

DFARS Case 2003-D058

Final Rule

PART 235—RESEARCH AND DEVELOPMENT CONTRACTING

* * * * *

SUBPART 235.70--RESEARCH AND DEVELOPMENT STREAMLINED CONTRACTING PROCEDURES

235.7000 Scope.

This subpart prescribes streamlined procedures for acquiring research and development, using a standard solicitation and contract format and the capabilities of the World Wide Web.

235.7001 Definitions.

As used in this subpart—

(a) “Research and development streamlined contract (RDSC)” means

(1) A contract that results from use of the research and development streamlined solicitation; or

(2) Any other contract prepared in the standard format published at the RDSS/C website.

(b) “Research and development streamlined solicitation (RDSS)” means a solicitation issued in accordance with 235.7003.

(c) “RDSS/C website” means the site on the World Wide Web at “http://www.rdss.
osd.mil/” where research and development streamlined solicitation and contracting information is published.

235.7002 Applicability.

(a) Except as provided in paragraph (b) of this section, consider using the procedures in this subpart for acquisitions that—

(1) Will result in the award of a cost-reimbursement contract; and

(2) Meet the criteria for research and development as defined in 235.001 and FAR 35.001.

(b) Do not use the procedures in this subpart for 

(1) Contracts to be performed outside the United States and Puerto Rico;

(2) Contracts denominated in other than U.S. dollars;

(3) Acquisitions using simplified acquisition procedures;

(4) Acquisition of engineering and manufacturing development, management support, or operational system development, as defined in 235.001; or

(5) Acquisition of laboratory supplies and equipment, base support services, or other services identified in paragraphs (a) through (h) of the definition of “service contract” at FAR 37.101.

(c) Regardless of whether the RDSS is used, the RDSC may be used for any acquisition that meets the criteria in paragraph (a) of this section.

235.7003 Research and development streamlined solicitation and contract.

235.7003-1 General.

The procedures and standard format are published at the RDSS/C website. The RDSS/C Managing Committee is responsible for updating the website.

235.7003-2 RDSS process.

(a) Synopsis. The synopsis required by FAR 5.203 shall include

(1) The information required by FAR 5.207; and

(2) A statement that the solicitation will be issued in the research and development streamlined solicitation format shown at the RDSS/C website.

(b) Solicitation.

(1) The solicitation, to be made available consistent with the requirements of FAR 5.102--

(i) Shall be in the format shown at the RDSS/C website;

(ii) Shall include the applicable version number of the RDSS standard format; and

(iii) Shall incorporate by reference the appropriate terms and conditions of the RDSS standard format.

(2) To encourage preparation of better cost proposals, consider allowing a delay between the due dates for technical and cost proposals.

235.7003-3 Proposal evaluation and contract award.

(a) Evaluate proposals in accordance with the evaluation factors set forth in the RDSS.

(b) RDSC.

(1) The RDSC shall include

(i) Standard Form (SF) 33, Solicitation, Offer, and Award, or SF 26, Award/
Contract; and

(ii) Sections B through J of the RDSS or other solicitation, with applicable fill-in information inserted.

(2) When an RDSC is awarded to an educational or nonprofit institution

(i) Remove provisions and clauses that do not apply to educational and nonprofit institutions; and

(ii) As necessary, insert appropriate replacement provisions and clauses.

235.7003-4 Additional provisions and clauses.

Use of FAR and DFARS provisions and clauses, and nonstandard provisions and clauses approved for agency use, that are not in the RDSS/C standard format, shall be approved in accordance with agency procedures.

* * * * *

Small Disadvantaged Businesses and Leader Company Contracting (DFARS Case 2003-D092)

FR Doc 04-25825

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Rules and Regulations]

[Page 67855]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-12]

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DEPARTMENT OF DEFENSE

48 CFR Parts 217 and 219

[DFARS Case 2003-D092]

Defense Federal Acquisition Regulation Supplement; Small Disadvantaged Businesses and Leader Company Contracting

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise text pertaining to DoD review of small business subcontracting plans, and to remove text pertaining to leader company contracting. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Effective November 22, 2004.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 2003-D092.

SUPPLEMENTARY INFORMATION:

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This final rule is a result of the DFARS Transformation initiative.

The DFARS changes--

Remove DFARS Subpart 217.4, which addresses the participation of small disadvantaged business concerns in leader company contracting. DoD rarely uses leader company contracting. Incentives for major DoD contractors to assist small disadvantaged business concerns are provided through the DoD Pilot Mentor-Prot[eacute]g[eacute] Program, in accordance with DFARS Subpart 219.71 and Appendix I.

Lower the approval level at DFARS 219.705-4(d), from two levels above the contracting officer to one level above the contracting officer, for small business subcontracting plans that contain a small disadvantaged business goal of less than five percent.

DoD published a proposed rule at 69 FR 21996 on April 23, 2004. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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 deletes text that is seldom used and revises review procedures that are internal to DoD.

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 217 and 219

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

0

Therefore, 48 CFR Parts 217 and 219 are amended as follows:

Small Disadvantaged Businesses and Leader Company Contracting

DFARS Case 2003-D092

Final Rule

PART 217—SPECIAL CONTRACTING METHODS

* * * * *

SUBPART 217.4--LEADER COMPANY CONTRACTING

217.401 General.

(1) When leader company contracting is to be considered, take special effort to select a small disadvantaged business (SDB) concern as the follower company if—

(i) The follower company will be a subcontractor and the North American Industry Classification System (NAICS) Industry Subsector of the acquisition is one in which use of an evaluation factor or subfactor for participation of SDB concerns is currently authorized (see FAR 19.201(b)); or

(ii) The follower company will be a prime contractor and the NAICS Industry Subsector of the acquisition is one in which use of a price evaluation adjustment is currently authorized (see FAR 19.201(b)).

(2) If special effort is required by paragraph (1) of this section and an SDB is not selected as the follower company, the contracting officer shall document the contract file to reflect—

(i) The extent of actions taken to identify SDB concerns for participation in the acquisition; and

(ii) The rationale for selection of a non-SDB as the follower company.

* * * * *

PART 219—SMALL BUSINESS PROGRAMS

* * * * *

SUBPART 219.7--SUBCONTRACTING WITH SMALL BUSINESS, SMALL DISADVANTAGED BUSINESS AND WOMEN-OWNED SMALL BUSINESS CONCERNS

219.705 Responsibilities of the contracting officer under the subcontracting assistance program.

* * * * *

219.705-4 Reviewing the subcontracting plan.

(d) Challenge any subcontracting plan that does not contain positive goals and consider the extent to which an offeror plans to use competition restricted to historically black colleges and universities or minority institutions. A small disadvantaged business goal of less than five percent must be approved two [one] levels above the contracting officer.

* * * * *

Final Rules – Legislative

 

Written Assurance of Technical Data Conformity (DFARS Case 2003-D104)

Written Assurance of Technical Data Conformity

DFARS Case 2003-D104

Interim Rule

PART 227—PATENTS, DATA, AND COPYRIGHTS

* * * * *

SUBPART 227.71—RIGHTS IN TECHNICAL DATA

* * * * *

227.7103-6 Contract clauses.

* * * * *

(e) Use the following clauses in solicitations and contracts that include the clause at 252.227-7013:

(1) 252.227-7016, Rights in Bid or Proposal Information;

(2) 252.227-7030, Technical Data--Withholding of Payment; [and]

(3) 252.227-7036, Declaration of Technical Data Conformity; and

(4[3]) 252.227-7037, Validation of Restrictive Markings on Technical Data (paragraph (e) of the clause contains information that must be included in a challenge).

* * * * *

227.7103-14 Conformity, acceptance, and warranty of technical data.

(a) Statutory requirements. 10 U.S.C. 2320—

(1) Requires contractors to furnish written assurance, at the time technical data are delivered or are made available to the Government, that the technical data are complete, accurate, and satisfy the requirements of the contract concerning such data;

(2[1]) Provides for the establishment of remedies applicable to technical data found to be incomplete, inadequate, or not to satisfy the requirements of the contract concerning such data; and

(3[2]) Authorizes agency heads to withhold payments (or exercise such other remedies an agency head considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data.

* * * * *

227.7104 Contracts under the Small Business Innovation Research (SBIR) Program.

* * * * *

(e) Use the following provision and clauses in SBIR solicitations and contracts that include the clause at 252.227-7018:

(1) 252.227-7016, Rights in Bid or Proposal Information;

(2) 252.227-7017, Identification and Assertion of Use, Release, or Disclosure Restrictions;

(3) 252.227-7019, Validation of Asserted Restrictions--Computer Software;

(4) 252.227-7030, Technical Data--Withholding of Payment; [and]

(5) 252.227-7036, Declaration of Technical Data Conformity; and

(6[5]) 252.227-7037, Validation of Restrictive Markings on Technical Data (paragraph (e) of the clause contains information that must be included in a challenge).

* * * * *

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

252.227-7036 Declaration of Technical Data Conformity [Reserved].

As prescribed at 227.7103-6(e)(3) or 227.7104(e)(5), use the following clause:

DECLARATION OF TECHNICAL DATA CONFORMITY (JAN 1997)

All technical data delivered under this contract shall be accompanied by the following written declaration:

The Contractor, ________________________, hereby declares that, to the best of its knowledge and belief, the technical data delivered herewith under Contract No.____________________ is complete, accurate, and complies with all requirements of the contract.

Date ____________________________________

Name and Title of Authorized Official ___________________________________

(End of clause)

* * * * *

252.227-7037 Validation of Restrictive Markings on Technical Data.

As prescribed in 227.7102-3(c), 227.7103-6(e)(4[3]), 227.7104(e)(6[5]), or 227.7203-6(f), use the following clause:

* * * * *

Contracting for Architect-Engineer Services (DFARS Case 2003-D105)

FR Doc 04-12935

[Federal Register: June 8, 2004 (Volume 69, Number 110)]

[Rules and Regulations]

[Page 31909-31910]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr08jn04-18]

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DEPARTMENT OF DEFENSE

48 CFR Part 219

[DFARS Case 2003-D105]

Defense Federal Acquisition Regulation Supplement; Contracting for Architect-Engineer Services

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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

SUMMARY: DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 1427 of the National Defense Authorization Act for Fiscal Year 2004. Section 1427 increases, from $85,000 to $300,000, the threshold below which acquisitions for architect-engineer services for military construction or family housing projects are set aside for small business concerns.

DATES: Effective Date: June 8, 2004. Comments on the interim rule should be submitted in writing to the address shown below on or before August 9, 2004, to be considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D105, using any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.

Follow the instructions for

submitting comments.

E-mail: dfars@osd.mil. Include DFARS Case 2003-D105 in the subject line of the message.

Fax: (703) 602-0350.

Mail: Defense Acquisition Regulations Council, Attn: Mr. Euclides Barrera, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.

Hand Delivery/Courier: Defense Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.

All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf

.

FOR FURTHER INFORMATION CONTACT: Mr. Euclides Barrera, (703) 602-0296.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule amends DFARS part 219 to implement section 1427 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1427 amends 10 U.S.C. 2855 to increase, from $85,000 to $300,000, the threshold below which acquisitions for architect-engineer services for military construction or family housing projects are set aside for small business concerns.

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 has prepared an initial regulatory flexibility analysis, which is summarized as follows:

The objective of the rule is to establish a new dollar threshold of $300,000 for use in determining whether DoD acquisitions for architect-engineer services for military construction or family housing projects will be set aside for small business concerns. The legal basis for the rule is 10 U.S.C. 2855, as amended by section 1427 of Pub. L. 108-136. In accordance with 10 U.S.C. 2855, acquisitions below the stated threshold must be set aside for small business concerns, and acquisitions at or above the threshold may not be set aside for small business concerns. The rule will apply to small entities that perform architect-engineer services. The rule will increase opportunities for these entities to receive DoD contract awards. 10 U.S.C. 2855 permits the Secretary of Defense to revise the dollar threshold specified within the statute, to ensure that small business concerns receive a reasonable share of contracts for architect-engineer services for military construction or family housing projects. The new statutory threshold of $300,000 is considered to be appropriate at this time.

A copy of the analysis may be obtained from the point of contact specified herein. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2003-D105.

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.

D. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements section 1427 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1427 amends 10 U.S.C. 2855 to increase, from $85,000 to $300,000, the threshold below which acquisitions for architect-engineer services for military construction or family housing projects are set aside for small business concerns. Section 1427 became effective upon enactment on November 24, 2003. Comments received in response to this interim rule will be considered in the formation of the final rule.

List of Subjects in 48 CFR Part 219

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

0

Therefore, 48 CFR Part 219 is amended as follows:

0

1. The authority citation for 48 CFR Part 219 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 219--SMALL BUSINESS PROGRAMS

219.502-1 [Amended]

0

2. Section 219.502-1 is amended in paragraph (2) by removing ``$85,000'' both places it appears and adding ``$300,000'' in its place.

219.502-2 [Amended]

0

3. Section 219.502-2 is amended in paragraph (a)(iii) by removing ``$85,000'' and adding ``$300,000'' in its place.

219.1005 [Amended]

0

4. Section 219.1005 is amended in paragraph (a)(i)(B) two times, in paragraph (a)(i)(C), and in paragraph

[[Page 31910]]

(a)(i)(D), by removing ``$85,000'' and adding ``$300,000'' in its place.

[FR Doc. 04-12935 Filed 6-7-04; 8:45 am]

BILLING CODE 5001-08-P

Technical Amendments

FR Doc 04-25809

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Rules and Regulations]

[Page 67854-67855]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-11]

=======================================================================

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

DEPARTMENT OF DEFENSE

48 CFR Part 211

Defense Federal Acquisition Regulation Supplement; Technical

Amendments

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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

SUMMARY: DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement to update the Internet address for DoD specifications and standards.

EFFECTIVE DATE: November 22, 2004.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0311; facsimile (703) 602-0350.

List of Subjects in 48 CFR Part 211

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

0

Therefore, 48 CFR Part 211 is amended as follows:

Technical Amendments

Final Rule

PART 211—DESCRIBING AGENCY NEEDS

* * * * *

211.201 Identification and availability of specifications.

* * * * *

(d) The AMSDL, all unclassified specifications and standards listed in the DODISS, and data item descriptions listed in the AMSDL also may be obtained from the Department of Defense Single Stock Point (DoDSSP), Building 4, Section D, 700 Robbins Avenue, Philadelphia, PA 19111-5094; telephone (215) 697-2179; http://assist.daps.[dla.]mil. Include with the request

* * * * * 

Proposed Rules – DFARS Transformation

Basic Agreements for Telecommunications Services (DFARS Case 2003-D056)

FR Doc 04-25812

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Proposed Rules]

[Page 67883-67884]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-32]

=======================================================================

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

DEPARTMENT OF DEFENSE

48 CFR Part 239

[DFARS Case 2003-D056]

Defense Federal Acquisition Regulation Supplement; Basic Agreements for Telecommunications Services

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update text pertaining to the use of basic agreements in the acquisition of telecommunications services. This proposed rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the

DFARS.

DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before January 21, 2005, to be considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D056, using any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Defense Acquisition Regulations Web site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.

Follow the instructions for

submitting comments.

E-mail: dfars@osd.mil. Include DFARS Case 2003-D056 in the subject line of the message.

Fax: (703) 602-0350.

Mail: Defense Acquisition Regulations Council, Attn: Ms. Michele Peterson, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.

Hand Delivery/Courier: Defense Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.

All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf

.

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

SUPPLEMENTARY INFORMATION:

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This proposed rule is a result of the DFARS Transformation initiative. The rule deletes procedures at DFARS 239.7407-1 and 239.7407-2 regarding the use of basic agreements and communication service authorizations for the acquisition of telecommunications services. Text on this subject will be relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/index.htm

.

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 does not expect this rule 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., because the rule addresses procedural matters only, and makes no significant change to contracting policy. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2003-D056.

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 Part 239

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Therefore, DoD proposes to amend 48 CFR part 239 as follows:

Basic Agreements for Telecommunications Services

DFARS Case 2003-D056

Proposed Rule

(Text that is stricken and highlighted will be relocated

to Procedures, Guidance, and Information (PGI))

PART 239—ACQUISITION OF INFORMATION TECHNOLOGY

* * * * *

SUBPART 239.74--TELECOMMUNICATIONS SERVICES

* * * * *

239.7407 Type of contract.

[When acquiring telecommunications services, the contracting officer may use a basic agreement (see FAR 16.702) in conjunction with communication service authorizations. When using this method, follow the procedures at PGI 239.7407.]

239.7407-1 General.

In addition to acquisition methods described in the FAR, the method described in this section may be used to acquire telecommunications services.

239.7407-2 Communication service authorizations (CSAs).

Basic agreements (see FAR 16.702) are used widely in conjunction with communication service authorizations to facilitate award of telecommunications services.

(a) Use DD Form 428, Communication Service Authorization (CSA), or an electronic data processing substitute to award, modify, cancel, or terminate telecommunications services. The CSA shall—

(1) Refer to the basic agreement;

(2) Specify the types and quantities and equipment to be provided as well as the tariff (or other price if a tariff is not available) of those services and equipment;

(3) Specify the premises involved;

(4) Cite the address for billing;

(5) Identify the disbursing office; and

(6) Provide funding information.

(b) Before awarding a CSA, comply with the requirements in FAR and DFARS, e.g., for competition, reviews, approvals, and determinations and findings.

(c) Include an expiration date in each CSA.

(d) Modify CSAs to reflect any price increases.

* * * * *

Basic Agreements for Telecommunications Services

DFARS Case 2003-D056

Procedures, Guidance, and Information

PGI 239—ACQUISITION OF INFORMATION TECHNOLOGY

PGI 239.74--TELECOMMUNICATIONS SERVICES

PGI 239.7407 Communication service authorizations.

When using a basic agreement in conjunction with a communication service authorization—

(a) Use DD Form 428, Communication Service Authorization (CSA), or an electronic data processing substitute to award, modify, cancel, or terminate telecommunications services. The CSA shall—

(1) Refer to the basic agreement;

(2) Specify the types and quantities and equipment to be provided as well as the tariff (or other price if a tariff is not available) of those services and equipment;

(3) Specify the premises involved;

(4) Cite the address for billing;

(5) Identify the disbursing office;

(6) Provide funding information; and

(7) Include and expiration date.

(b) Before awarding a CSA, comply with the requirements in FAR and DFARS, e.g., for competition, reviews, approvals, and determinations and findings.

Update of Clauses for Telecommunications Services (DFARS Case 2003-D053)

FR Doc 04-25813

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Proposed Rules]

[Page 67885-67886]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-34]

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

DEPARTMENT OF DEFENSE

48 CFR Parts 239 and 252

[DFARS Case 2003-D053]

Defense Federal Acquisition Regulation Supplement; Update of Clauses for Telecommunications Services

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update clauses used in contracts for telecommunications services. This proposed rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before January 21, 2005, to be considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D053, using any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Defense Acquisition Regulations Web site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.

Follow the instructions for submitting comments.

E-mail: dfars@osd.mil. Include DFARS Case 2003-D053 in the subject line of the message.

Fax: (703) 602-0350.

Mail: Defense Acquisition Regulations Council, Attn: Ms. Michele Peterson, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.

Hand Delivery/Courier: Defense Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.

All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf

.

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

SUPPLEMENTARY INFORMATION:

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This proposed rule is a result of the DFARS Transformation initiative. The proposed changes include--

Deletion of an obsolete clause at DFARS 252.239-7003, Facilities and Services to be Furnished--Common Carriers.

Expansion of the applicability of the clauses at DFARS 252.239-7004, Orders for Facilities and Services; 252.239-7005, Rates, Charges, and Services; and 252.239-7007, Cancellation or Termination of Orders, to all carriers of telecommunications services. The clauses presently apply only to common carriers (those subject to Federal Communications Commission or other governmental regulation). Expansion of these clauses to all carriers reflects the current business environment, where the differences between common and noncommon carriers have become less distinct.

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 does not expect this rule 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., because the proposed DFARS changes reflect current business practices for the acquisition of telecommunications services. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2003-D053.

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 239 and 252

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Therefore, DoD proposes to amend 48 CFR parts 239 and 252 as follows:

Update of Clauses for Telecommunications Services

DFARS Case 2003-D053

Proposed Rule

PART 239—ACQUISITION OF INFORMATION TECHNOLOGY

* * * * *

SUBPART 239.74--TELECOMMUNICATIONS SERVICES

* * * * *

239.7406 Cost or pricing data and information other than cost or pricing data.

* * * * *

(c) Contracting officers shall obtain sufficient information to determine that the prices are reasonable. For example, cost or pricing data, if required in accordance with FAR 15.403-4, or information other than cost or pricing data, if required in accordance with FAR 15.403-3, may be necessary to support the reasonableness of—

* * * * *

(6) Proposed cancellation and termination charges under the clause at 252.239-7007, Cancellation or Termination of OrdersCommon Carriers, and reuse arrangements under the clause at 252.239-7008, Reuse Arrangements;

* * * * *

239.7411 Contract clauses.

(a) In addition to other appropriate FAR and DFARS clauses, use the following clauses in solicitations, contracts, and basic agreements for telecommunications services. Modify the clauses only if necessary to meet the requirements of a governmental regulatory agency—

(1) 252.239-7002, Access;

(2) 252.239-7003, Facilities and Services to be Furnished--Common Carriers;

(3[2]) 252.239-7004, Orders for Facilities and Services--Common Carriers;

(4[3]) 252.239-7005, Rates, Charges, and Services--Common Carriers;

(5[4]) 252.239-7006, Tariff Information;

(6[5]) 252.239-7007, Cancellation or Termination of Orders--Common Carriers;

(7[6]) 252.239-7008, Reuse Arrangements.

* * * * *

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

252.239-7003 Facilities and Services to be Furnished--Common Carriers [Reserved].

As prescribed in 239.7411(a), use the following clause:

FACILITIES AND SERVICES TO BE FURNISHED--COMMON CARRIERS

(DEC 1991)

(a) The Contractor shall furnish any classes of services or facilities that the Contractor offers or furnishes under published tariffs.

(b) When it is mutually agreed that the Contractor shall furnish nontariffed services, the Government shall order them under the Ordering of Facilities and Services clause of this agreement/contract. These nontariffed services may include the engineering, installation, alteration, or maintenance of facilities owned either by the Contractor or the Government, wherever located.

(c) Upon request of the Contracting Officer, the Contractor agrees to interconnect its facilities with any Government-owned or furnished telecommunications equipment, facilities, or transmission media. The Contractor shall use established technical criteria for ensuring continuity of service and traffic without damage to or degradation of commercial facilities.

(End of clause)

252.239-7004 Orders for Facilities and Services--Common Carriers.

As prescribed in 239.7411(a), use the following clause:

ORDERS FOR FACILITIES AND SERVICES--COMMON CARRIERS

(DEC 1991) [(XXX 2004)]

The Contractor shall acknowledge a communication service authorization or other type order for supplies and facilities by—

(a) Commencing performance; or

(b) Written acceptance by a duly authorized representative.

(End of clause)

252.239-7005 Rates, Charges, and Services--Common Carriers.

As prescribed in 239.7411(a), use the following clause:

RATES, CHARGES, AND SERVICES--COMMON CARRIERS

(DEC 1991) [(XXX 2004)]

(a) Definition. “Governmental regulatory body” means the Federal Communications Commission, any statewide regulatory body, or any body with less than statewide jurisdiction when operating under the state authority. Regulatory bodies whose decisions are not subject to judicial appeal and regulatory bodies which regulate a company owned by the same entity which creates the regulatory body are not “governmental regulatory bodies.”

(b) The Contractor shall furnish the services and facilities under this agreement/contract in accordance with—

(1) All applicable tariffs, rates, charges, rules, regulations, or requirements;

(i) Lawfully established by a governmental regulatory body; and

(ii) Applicable to service and facilities furnished or offered by the Contractor to the general public or the Contractor's subscribers;

(2) Rates, terms, and conditions of service and facilities furnished or offered by the Contractor to the general public or the Contractor's subscribers; or

(3) Rates, terms, and conditions of service as may be agreed upon, subject, when appropriate, to jurisdiction of a governmental regulatory body.

(c) The Government shall not prepay for services.

(d) For nontariffed services, the Contractor shall charge the Government at the lowest rate and under the most favorable terms and conditions for similar service and facilities offered to any other customer.

(e) Recurring charges for services and facilities shall, in each case, start with the satisfactory beginning of service or provision of facilities or equipment and are payable monthly in arrears.

(f) Subject to the Cancellation or Termination of Orders--Common Carriers clause, of this agreement/contract, the Government may stop the use of any service or facilities furnished under this agreement/contract at any time. The Government shall pay the contractor all charges for services and facilities adjusted to the effective date of discontinuance.

(g) Expediting charges are costs necessary to get services earlier than normal. Examples are overtime pay or special shipment. When authorized, expediting charges shall be the additional costs incurred by the Contractor and the subcontractor. The Government shall pay expediting charges only when—

(1) They are provided for in the tariff established by a governmental regulatory body; or

(2) They are authorized in a communication service authorization or other contractual document.

(h) When services normally provided are technically unacceptable and the development, fabrication, or manufacture of special equipment is required, the Government may—

(1) Provide the equipment; or

(2) Direct the Contractor to acquire the equipment or facilities. If the Contractor acquires the equipment or facilities, the acquisition shall be competitive, if practicable.

(i) If at any time the Government defers or changes its orders for any of the services but does not cancel or terminate them, the amount paid or payable to the Contractor for the services deferred or modified shall be equitably adjusted under applicable tariffs filed by the Contractor with the regulatory commission in effect at the time of deferral or change. If no tariffs are in effect, the Government and the Contractor shall equitably adjust the rates by mutual agreement. Failure to agree on any adjustment shall be a dispute concerning a question of fact within the meaning of the Disputes clause of this contract.

(End of clause)

* * * * *

252.239-7007 Cancellation or Termination of Orders--Common Carriers.

As prescribed in 239.7411(a), use the following clause:

CANCELLATION OR TERMINATION OF ORDERS--COMMON CARRIERS
(JAN 1997)
[(XXX 2004)]

(a) If the Government cancels any of the services ordered under this agreement/contract, before the services are made available to the Government, or terminates any of these services after they are made available to the Government, the Government shall reimburse the Contractor for the actual nonrecoverable costs the Contractor has reasonably incurred in providing facilities and equipment for which the Contractor has no foreseeable reuse.

(b) The amount of the Government's liability upon cancellation or termination of any of the services ordered under this agreement/contract will be determined under applicable tariffs governing cancellation and termination charges which—

(1) Are filed by the Contractor with a governmental regulatory body, as defined in the Rates, Charges, and Services--Common Carriers clause of this agreement/contract;

(2) Are in effect on the date of termination; and

(3) Provide specific cancellation or termination charges for the facilities and equipment involved or show how to determine the charges.

(c) The amount of the Government's liability upon cancellation or termination of any of the services ordered under this agreement/contract, which are not subject to a governmental regulatory body, will be determined under a mutually agreed schedule in the communication services authorization (CSA) or other contractual document.

(d) If no applicable tariffs are in effect on the date of cancellation or termination or set forth in the applicable CSA or other contractual document, the Government's liability will be determined under the following settlement procedures—

(1) The Contractor agrees to provide the Contracting Officer, in such reasonable detail as the Contracting Officer may require, inventory schedules covering all items of property or facilities in the Contractor's possession, the cost of which is included in the Basic Cancellation or Termination Liability for which the Contractor has no foreseeable reuse.

(2) The Contractor shall use its best efforts to sell property or facilities when the Contractor has no foreseeable reuse or when the Government has not exercised its option to take title under the Title to Telecommunications Facilities and Equipment clause of this agreement/contract. The Contractor shall apply any proceeds of the sale to reduce any payments by the Government to the Contractor under a cancellation or termination settlement.

(3) The Contractor shall record actual nonrecoverable costs under established accounting procedures prescribed by the cognizant governmental regulatory authority or, if no such procedures have been prescribed, under generally accepted accounting procedures applicable to the provision of telecommunication services for public use.

(4) The actual nonrecoverable costs are the installed costs of the facilities and equipment, less cost of reusable materials, and less net salvage value. Installed costs shall include the actual cost of equipment and materials specifically provided or used, plus the actual cost of installing (including engineering, labor, supervision, transportation, rights-of-way, and any other items which are chargeable to the capital accounts of the Contractor) less any costs the Government may have directly reimbursed the Contractor under the Special Construction and Equipment Charges clause of this agreement/contract. Deduct from the Contractor's installed cost, the net salvage value (salvage value less cost of removal). In determining net salvage value, give consideration to foreseeable reuse of the facilities and equipment by the Contractor. Make allowance for the cost of dismantling, removal, reconditioning, and disposal of the facilities and equipment when necessary either to the sale of facilities or their reuse by the Contractor in another location.

(5) The Basic Cancellation Liability is defined as the actual nonrecoverable cost which the Government shall reimburse the Contractor at the time services are cancelled. The Basic Termination Liability is defined as the nonrecoverable cost amortized in equal monthly increments throughout the liability period. Upon termination of services, the Government shall reimburse the Contractor for the nonrecoverable cost less such costs amortized to the date services are terminated. Establish the liability period as mutually agreed to but not to exceed ten years.

(6) When the Basic Cancellation or Termination Liability established by the CSA or other contractual document is based on estimated costs, the Contractor agrees to settle on the basis of actual cost at the time of termination or cancellation.

(7) The Contractor agrees that, if after settlement but within the termination liability period of the services, should the Contractor make reuse of equipment or facilities which were treated as nonreusable or nonsalvable in the settlement, the Contractor shall reimburse the Government for the value of the equipment or facilities.

(8) The Contractor agrees to exclude—

(i) Any costs which are not included in determining cancellation and termination charges under the Contractor's standard practices or procedures; and

(ii) Charges not ordinarily made by the Contractor for similar facilities or equipment, furnished under similar circumstances.

(e) The Government may, under such terms and conditions as it may prescribe, make partial payments and payments on account against costs incurred by the Contractor in connection with the cancelled or terminated portion of this agreement/contract. The Government may make these payments if in the opinion of the Contracting Officer the total of the payments is within the amount the Contractor is entitled. If the total of the payments is in excess of the amount finally agreed or determined to be due under this clause, the Contractor shall pay the excess to the Government upon demand.

(f) Failure to agree shall be a dispute concerning a question of fact within the meaning of the Disputes clause.

(End of clause)

Information Technology Equipment – Screening of Government Inventory (DFARS Case 2003-D054)

FR Doc 04-25811

[Federal Register: November 22, 2004 (Volume 69, Number 224)]

[Proposed Rules]

[Page 67884-67885]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22no04-33]

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DEPARTMENT OF DEFENSE

48 CFR Part 239

[DFARS Case 2003-D054]

Defense Federal Acquisition Regulation Supplement; Information Technology Equipment--Screening of Government Inventory

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to delete obsolete procedures for screening of Government inventory before authorizing a contractor to purchase information technology equipment. This proposed rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before January 21, 2005.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D054, using any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.

Follow the instructions for submitting comments.

E-mail: dfars@osd.mil. Include DFARS Case 2003-D054 in the subject line of the message.

Fax: (703) 602-0350.

Mail: Defense Acquisition Regulations Council, Attn: Ms. Michele Peterson, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.

Hand Delivery/Courier: Defense Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402.

All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf

.

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

SUPPLEMENTARY INFORMATION:

A. Background

DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at http://www.acq.osd.mil/dpap/dfars/transf.htm.

This proposed rule is a result of the DFARS Transformation initiative. The rule deletes obsolete procedures for screening of Government inventory before authorizing a contractor to purchase information technology equipment. DoD now manages information technology equipment in the same manner as other Government property, in accordance with FAR part 45 and DFARS part 245.

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 does not expect this rule 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., because the proposed DFARS changes are limited to deletion of obsolete procedures for screening of Government inventory. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2003-D054.

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.

[[Page 67885]]

List of Subjects in 48 CFR Part 239

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Therefore, DoD proposes to amend 48 CFR part 239 as follows:

Contractor Use of Government Supply Sources

DFARS Case 2003-D045

Final Rule

(Text that is stricken and highlighted will be relocated

to Procedures, Guidance, and Information (PGI))

PART 251—USE OF GOVERNMENT SOURCES BY CONTRACTORS

SUBPART 251.1--CONTRACTOR USE OF GOVERNMENT SUPPLY SOURCES

251.102 Authorization to use Government supply sources.

(e) Use the format in Table 51-1, Authorization to Purchase from Government Supply Sources. Specify the terms of the purchase, including contractor acceptance of any Government materiel, payment terms, and the addresses required by paragraph (e) of the clause at 252.251-7000, Ordering from Government Supply Sources. [When authorizing contractor use of Government supply sources, follow the procedures at PGI 251.102.]

(3)(ii) In addition to the procedure and form authorized by FAR 51.102(e)(3)(ii), contractors may [The contracting officer may also authorize the contractor to] use the DD Form 1155 when requisitioning from the Department of Veterans Affairs.

(f) The authorizing agency is also responsible for promptly considering requests of the DoD supply source for authority to refuse to honor requisitions from a contractor that is indebted to DoD and has failed to pay proper invoices in a timely manner.

TABLE 51-1, AUTHORIZATION TO PURCHASE FROM GOVERNMENT SUPPLY SOURCES

SUBJECT: Authorization to Purchase from Government Supply Sources

_______________________ ______________ (Contractor's Name)

____________________________________________ (Contractor's Address)

1. You are hereby authorized to use Government sources in performing Contract No. __________________ for [insert applicable military department or defense agency], as follows: [Insert applicable purchasing authority given to the contractor.]

2.a. Purchase Orders Under Federal Supply Schedules or Personal Property Rehabilitation Price Schedules. Place orders in accordance with the terms and conditions of the attached Schedule(s) and this authorization. Attach a copy of this authorization to the order (unless a copy was previously furnished to the Federal Supply Schedule or Personal Property Rehabilitation Price Schedule contractor). Insert the following statement in the order:

b. Requisitioning from the General Services Administration (GSA) or the Department of Defense (DoD). Place orders in accordance with this authorization and, as appropriate, the following:

(1) Federal Standard Requisitioning and Issue Procedures (FEDSTRIP) (GSA FEDSTRIP Operating Guide: FPMR 101-26.2 (41 CFR 101-26.2)). Copies are available from the Superintendent of Documents, Government Printing Office, Washington, DC 20402; telephone (202) 512-1800; facsimile (202) 512-2250.

(2) Military Standard Requisitioning and Issue Procedures (MILSTRIP) (DoD 4000.25-1-M). Copies are available from the Defense Logistics Agency, Administrative Support Center East, ATTN: ASCE-WS, 14 Dedication Drive, Suite 3, POD 43, New Cumberland, PA 17070-5011; telephone 1-888-DLA-PUBS(352-7827), or (717) 770-6034; facsimile (717) 770-4817.

(c) Enterprise Software Initiative. Place orders in accordance with the terms and conditions of the attached Enterprise Software Agreement(s), or instructions for obtaining commercial software or software maintenance from Enterprise Software Initiative inventories, and this authorization. Attach a copy of this authorization to the order (unless a copy was previously furnished to the Enterprise Software Agreement contractor). Insert the following statement in the order:

This order is placed under written authorization from __________________________ dated___________ (*___________). In the event of any inconsistency between the terms and conditions of this order, and those of the Enterprise Software Agreement, the latter will govern.

3. ***

4. This authority is not transferable or assignable.

5. The DoD Activity Address Directory (DoDAAD) (DoD 4000.25-6-M) Activity Address Code** to which this Authorization applies is ___________.

6. This Authorization expires _______________________________.

_____________________________

(Contracting Officer)

* Insert “a copy of which is attached,” “a copy of which you have on file,” or other suitable language, as appropriate.

** The sponsoring service assumes responsibility for monitoring and controlling all activity address codes used in the letters of authority.

*** Insert other provisions, as necessary.

 

251.105 Payment for shipments.

Contractor payments for purchases from DoD supply sources are due within 30 days of the date of a proper invoice (see FAR 32.902 for definition of “due date” and “payment date;” also see FAR 32.905(e)).

251.107 Contract clause.

Use the clause at 252.251-7000, Ordering From Government Supply Sources, in solicitations and contracts which include the clause at FAR 52.251-1, Government Supply Sources.

* * * * *

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

252.251-7000 Ordering From Government Supply Sources.

As prescribed in 251.107, use the following clause:

ORDERING FROM GOVERNMENT SUPPLY SOURCES (OCT 2002 [NOV 2004])

* * * * *

(c) When placing orders for Government stock, the Contractor shall—

* * * * *

(4) Pay invoices from Government supply sources promptly. For purchases made from DoD supply sources, this means within 30 days of the date of a proper invoice (see also Defense Federal Acquisition Regulation Supplement (DFARS) 251.105). [The Contractor shall annotate each invoice with the date of receipt.] For purposes of computing interest for late Contractor payments, the Government’s invoice is deemed to be a demand for payment in accordance with the Interest clause of this contract. The Contractor’s failure to pay may also result in the DoD supply source refusing to honor the requisition (see DFARS 251.102(f)) or in the Contracting Officer terminating the Contractor’s authorization to use DoD supply sources. In the event the Contracting Officer decides to terminate the authorization due to the Contractor’s failure to pay in a timely manner, the Contracting Officer shall provide the Contractor with prompt written notice of the intent to terminate the authorization and the basis for such action. The Contractor shall have 10 days after receipt of the Government’s notice in which to provide additional information as to why the authorization should not be terminated. The termination shall not provide the Contractor with an excusable delay for failure to perform or complete the contract in accordance with the terms of the contract, and the Contractor shall be solely responsible for any increased costs.

* * * * *