DFARS CHANGE NOTICE 20060123

[Federal Register: January 23, 2006 (Volume 71, Number 14)]

DEPARTMENT OF DEFENSE

48 CFR Parts 237 and 252

[DFARS Case 2003-D041]

Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Specialized Service Contracting

AGENCY: Defense Acquisition Regulations System, Department of Defense

ACTION: Final rule.

SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update text pertaining to the acquisition of mortuary and laundry and dry cleaning services. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Effective Date: January 23, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 2003-D041.

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/dars/dfars/transformation/index.htm.

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

Revises DFARS Subpart 237.70 to delete procedures for defining the geographical area to be covered by mortuary services contracts, and procedures for distribution of those contracts. These procedures have been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi.

Deletes the clause at DFARS 252.237-7010 containing facility requirements for mortuary services, as these requirements are adequately addressed in State law.

Revises DFARS Subpart 237.71 to delete unnecessary requirements relating to contracting for laundry and dry cleaning services.

DoD published a proposed rule at 70 FR 8563 on February 22, 2005. 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 updates and streamlines DFARS text, but makes no significant change to DoD contracting policy.

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 237 and 252

Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 237 and 252 are amended as follows:

1. The authority citation for 48 CFR parts 237 and 252 continues to read as follows:

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

PART 237--SERVICE CONTRACTING

2. Subpart 237.70 is revised to read as follows:

Subpart 237.70--Mortuary Services

Sec.

237.7000 Scope.

237.7001 Method of acquisition.

237.7002 Area of performance and distribution of contracts.

237.7003 Solicitation provisions and contract clauses.

237.7000 Scope.

This subpart--

(a) Applies to contracts for mortuary services (the care of remains) for military personnel within the United States; and

(b) May be used as guidance in areas outside the United States for mortuary services for deceased military and civilian personnel.

237.7001 Method of acquisition.

(a) Requirements type contract. By agreement among the military activities, one activity in each geographical area will contract for the estimated requirements for the care of remains for all military activities in the area. Use a requirements type contract (see FAR 16.503) when the estimated annual requirements for the activities in the area are ten or more.

(b) Purchase order. Where no contract exists, use DD Form 1155, Order for Supplies or Services, to obtain mortuary services.

237.7002 Area of performance and distribution of contracts.

Follow the procedures at PGI 237.7002 for--

(a) Defining the geographical area to be covered by the contract; and

(b) Distributing copies of the contract.

237.7003 Solicitation provisions and contract clauses.

(a) Use the provision at 252.237-7002, Award to Single Offeror, in all sealed bid solicitations for mortuary services. Use the basic provision with its Alternate I in all negotiated solicitations for mortuary services.

(b) Use the following clauses in all mortuary service solicitations and contracts, except do not use the clauses at 252.237-7004, Area of Performance, in solicitations or contracts that include port of entry requirements:

(1) 252.237-7003, Requirements, (insert activities authorized to place orders in paragraph (e) of the clause).

(2) 252.237-7004, Area of Performance.

(3) 252.237-7005, Performance and Delivery.

(4) 252.237-7006, Subcontracting.

(5) 252.237-7007, Termination for Default.

(6) 252.237-7008, Group Interment.

(7) 252.237-7009, Permits.

(8) 252.237-7011, Preparation History.

(c) Use the clause at FAR 52.245-4, Government-Furnished Property (Short Form), in solicitations and contracts that include port of entry requirements.

3. Section 237.7100 is revised to read as follows:

237.7100 Scope.

This subpart--

(a) Applies to contracts for laundry and dry cleaning services within the United States; and

(b) May be used as guidance in areas outside the United States.

237.7101 [Removed]

4. Section 237.7101 is removed.

237.7102 [Redesignated]

5. Section 237.7102 is redesignated as section 237.7101.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.237-7002 [Amended]

6. Section 252.237-7002 is amended in the introductory text, and in Alternate I in the introductory text, by removing ``237.7004'' and adding in its place ``237.7003''.

252.237-7003 through 252.237-7009 [Amended]

7. Sections 252.237-7003 through 252.237-7009 are amended in the introductory text by removing ``237.7004'' and adding in its place ``237.7003''.

252.237-7010 [Removed and Reserved]

8. Section 252.237-7010 is removed and reserved.

252.237-7011 [Amended]

9. Section 252.237-7011 is amended in the introductory text by removing ``237.7004'' and adding in its place ``237.7003''.

252.237-7012 through 252.237-7015 [Amended]

10. Sections 252.237-7012 through 252.237-7015 are amended in the introductory text by removing ``237.7102'' and adding in its place ``237.7101''.

252.237-7016 [Amended]

11. Section 252.237-7016 is amended in the introductory text, and in Alternates I and II in the introductory text, by removing ``237.7102'' and adding in its place ``237.7101''.

252.237-7017 and 252.237-7018 [Amended]

12. Sections 252.237-7017 and 252.237-7018 are amended in the introductory text by removing ``237.7102'' and adding in its place ``237.7101''.

[Federal Register: January 23, 2006 (Volume 71, Number 14)]

DEPARTMENT OF DEFENSE

48 CFR Part 241

[DFARS Case 2003-D069]

Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Acquisition of Utility Services

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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

EFFECTIVE DATE: January 23, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 2003-D069.

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/dars/dfars/transformation/index.htm.

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

Deletes text on use of competitive procedures and delegated authority to acquire utility services at DFARS 241.202 and 241.203, as these issues are adequately addressed in the Federal Acquisition Regulation;

Deletes obsolete text on preaward contract reviews at DFARS 241.270; and

Deletes procedures and corresponding definitions related to connection charges and award of separate contracts for utility services at DFARS 241.101, 241.202, and 241.205. Text on these subjects has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi

DoD published a proposed rule at 70 FR 8566 on February 22, 2005. 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 updates and streamlines DFARS text, but makes no significant change to DoD contracting policy.

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 241

Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 241 is amended as follows:

PART 241--ACQUISITION OF UTILITY SERVICES

1. The authority citation for 48 CFR part 241 continues to read as follows:

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

2. Section 241.101 is amended by removing the definitions of ``Definite term contract'', ``Dual service area'', and ``Indefinite term contract'', and by revising the definition of ``Service power procurement officer'' to read as follows:

241.101 Definitions.

* * * * *

Service power procurement officer means for the--

(1) Army, the Chief of Engineers;

(2) Navy, the Commander, Naval Facilities Engineering Command;

(3) Air Force, the head of a contracting activity; and

(4) Defense Logistics Agency, the head of a contracting activity.

3. Section 241.103 is revised to read as follows:

241.103 Statutory and delegated authority.

(1) The contracting officer may enter into a utility service contract related to the conveyance of a utility system for a period not to exceed 50 years (10 U.S.C. 2688(c)(3)).

(2) See PGI 241.103 for statutory authorities and maximum contract periods for utility and energy contracts.

4. Section 241.202 is revised to read as follows:

241.202 Procedures.

(1) Connection and service charges. The Government may pay a connection charge when required to cover the cost of the necessary connecting facilities. A connection charge based on the estimated labor cost of installing and removing the facility shall not include salvage cost. A lump-sum connection charge shall be no more than the agreed cost of the connecting facilities less net salvage. The order of precedence for contractual treatment of connection and service charges is--

(i) No connection charge.

(ii) Termination liability. Use when an obligation is necessary to secure the required services. The obligation must be not more than the agreed connection charge, less any net salvage material costs. Use of a termination liability instead of a connection charge requires the approval of the service power procurement officer or designee.

(iii) Connection charge, refundable. Use a refundable connection charge when the supplier refuses to provide the facilities based on lack of capital or published rules which prohibit providing up-front funding. The contract should provide for refund of the connection charge within five years unless a longer period or omission of the refund requirement is authorized by the service power procurement officer or designee.

(iv) Connection and service charges, nonrefundable. The Government may pay certain nonrefundable, nonrecurring charges including service initiation charges, a contribution in aid of construction, membership fees, and charges required by the supplier's rules and regulations to be paid by the customer. If possible, consider sharing with other than Government users the use of (and costs for) facilities when large nonrefundable charges are required.

(2) Construction and labor requirements. Follow the procedures at PGI 241.202(2) for construction and labor requirements associated with connection and service charges.

241.203 [Removed]

5. Section 241.203 is removed.

6. Section 241.205 is revised to read as follows:

241.205 Separate contracts.

Follow the procedures at PGI 241.205 when acquiring utility services by separate contract.

241.270 [Removed]

7. Section 241.270 is removed.

[Federal Register: January 23, 2006 (Volume 71, Number 14)]

DEPARTMENT OF DEFENSE

48 CFR Parts 213 and 253

[DFARS Case 2003-D075]

Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Simplified Acquisition Procedures

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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

DATES: Effective January 23, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 2003-D075.

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/dars/dfars/transformation/index.htm.

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

Updates and consolidates text on the use of imprest funds and third-party drafts at DFARS 213.305;

Deletes unnecessary cross-references at DFARS 213.7001 and 213.7003-2; and

Deletes guidance on the use of unilateral contract modifications at DFARS 213.302-3, and deletes procedures for use of forms at DFARS 213.307, 253.213, and 253.213-70. This text has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi

DoD published a proposed rule at 70 FR 19042 on April 12, 2005. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change. In addition, statutory references have been updated at DFARS 213.305-3(d)(iii)(A) and 213.306(a)(1)(B).

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 updates and streamlines DFARS text, but makes no significant change to DoD contracting policy.

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 213 and 253

Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 213 and 253 are amended as follows:0

1. The authority citation for 48 CFR parts 213 and 253 continues to read as follows:

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

PART 213--SIMPLIFIED ACQUISITION PROCEDURES

2. Section 213.302-3 is amended by revising paragraph (2) to read as follows:

213.302-3 Obtaining contractor acceptance and modifying purchase orders.

* * * * *

(2) See PGI 213.302-3 for guidance on the use of unilateral modifications.

* * * * *

213.305-1 [Removed]

3. Section 213.305-1 is removed.

4. Section 213.305-3 is revised to read as follows:

213.305-3 Conditions for use.

(d)(i) On a very limited basis, installation commanders and commanders of other activities with contracting authority may be granted authority to establish imprest funds and third party draft (accommodation check) accounts. Use of imprest funds and third party drafts must comply with--

(A) DoD 7000.14-R, DoD Financial Management Regulation, Volume 5, Disbursing Policy and Procedures; and

(B) The Treasury Financial Manual, Volume I, Part 4, Chapter 3000.

(ii) Use of imprest funds requires approval by the Director for Financial Commerce, Office of the Deputy Chief Financial Officer, Office of the Under Secretary of Defense (Comptroller), except as provided in paragraph (d)(iii) of this subsection.

(iii) Imprest funds are authorized for use without further approval for--

(A) Overseas transactions at or below the micro-purchase threshold in support of a contingency operation as defined in 10 U.S.C. 101(a)(13) or a humanitarian or peacekeeping operation as defined in 10 U.S.C. 2302(8); and

(B) Classified transactions.

213.306 [Amended]

5. Section 213.306 is amended in paragraph (a)(1)(B) by removing ``10 U.S.C. 2302(7)'' and adding in its place ``10 U.S.C. 2302(8)''.

6. Section 213.307 is revised to read as follows:

213.307 Forms.

See PGI 213.307 for procedures on use of forms for purchases made using simplified acquisition procedures.

213.7001 [Removed]

7. Section 213.7001 is removed.

213.7002 and 213.7003 [Redesignated]

8. Sections 213.7002 and 213.7003 are redesignated as sections 213.7001 and 213.7002, respectively.

9. Newly designated section 213.7002 is revised to read as follows:

213.7002 Purchase orders.

The contracting officer need not obtain a contractor's written acceptance of a purchase order or modification of a purchase order for an acquisition under the 8(a) Program pursuant to 219.804-2(2).

213.7003-1 and 213.7003-2 [Removed]

10. Sections 213.7003-1 and 213.7003-2 are removed.

PART 253--FORMS

11. Section 253.213 is revised to read as follows:

253.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165, 1449, and OF's 336, 347, and 348).

(f) DoD uses the DD Form 1155, Order for Supplies or Services, instead of OF 347; and OF 336, Continuation Sheet, instead of OF 348. Follow the procedures at PGI 253.213(f) for use of forms.

12. Section 253.213-70 is revised to read as follows:

253.213-70 Completion of DD Form 1155, Order for Supplies or Services.

Follow the procedures at PGI 253.213-70 for completion of DD Form 1155.

[Federal Register: January 23, 2006 (Volume 71, Number 14

DEPARTMENT OF DEFENSE

48 CFR Part 215

[DFARS Case 2003-D077]

Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Contracting by Negotiation

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

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

EFFECTIVE DATE: January 23, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 2003-D077.

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/dars/dfars/transformation/index.htm.

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

Deletes unnecessary text at DFARS 215.000, 215.204-1, 215.304(c)(ii), and 215.305(b).

Deletes text at DFARS 215.303 and 215.304 containing procedures for preparation of source selection plans and examples of source selection evaluation factors. This text has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi.

Updates references to the clauses at FAR 52.219-8 and 52.219-9, to reflect the current clause titles.

DoD published a proposed rule at 70 FR 14624 on March 23, 2005. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule. The final rule contains a paragraph 215.304(c)(ii) that was not included in the proposed rule, as this paragraph was added to the DFARS (as 215.304(c)(iii)) in the interim rule published at 70 FR 29643 on May 24, 2005.

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 updates and streamlines DFARS text, but makes no significant change to DoD contracting policy.

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 215

Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR Part 215 is amended as follows:

PART 215--CONTRACTING BY NEGOTIATION

1. The authority citation for 48 CFR part 215 continues to read as follows:

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

215.000 [Removed]

2. Section 215.000 is removed.

Subpart 215.2 [Removed]

3. Subpart 215.2 is removed.

4. Sections 215.303 through 215.305 are revised to read as follows:

215.303 Responsibilities.

(b)(2) For high-dollar value and other acquisitions, as prescribed by agency procedures, the source selection authority shall approve a source selection plan before the solicitation is issued. Follow the procedures at PGI 215.303(b)(2) for preparation of the source selection plan.

215.304 Evaluation factors and significant subfactors.

(c)(i) In acquisitions that require use of the clause at FAR 52.219-9, Small Business Subcontracting Plan, other than those based on the lowest price technically acceptable source selection process (see FAR 15.101-2), the extent of participation of small businesses and historically black colleges or universities and minority institutions in performance of the contract shall be addressed in source selection. The contracting officer shall evaluate the extent to which offerors identify and commit to small business and historically black college or university and minority institution performance of the contract, whether as a joint venture, teaming arrangement, or subcontractor.

(A) See PGI 215.304(c)(i)(A) for examples of evaluation factors.

(B) Proposals addressing the extent of small business and historically black college or university and minority institution performance may be separate from subcontracting plans submitted pursuant to the clause at FAR 52.219-9 and should be structured to allow for consideration of offers from small businesses.

(C) When an evaluation assesses the extent that small businesses and historically black colleges or universities and minority institutions are specifically identified in proposals, the small businesses and historically black colleges or universities and minority institutions considered in the evaluation shall be listed in any subcontracting plan submitted pursuant to FAR 52.219-9 to facilitate compliance with 252.219-7003(g).

(ii) In accordance with 10 U.S.C. 2436, consider the purchase and use of capital assets (including machine tools) manufactured in the United States, in source selections for all major defense acquisition programs, as defined in 10 U.S.C. 2430, when it is pertinent to the best value determination.

215.305 Proposal evaluation.

(a)(2) Past performance evaluation. When a past performance evaluation is required by FAR 15.304, and the solicitation includes the clause at FAR 52.219-8, Utilization of Small Business Concerns, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause. When a past performance evaluation is required by FAR 15.304, and the solicitation includes the clause at FAR 52.219-9, Small Business Subcontracting Plan, the evaluation factors shall include the past performance of offerors in complying with requirements of that clause.

[Federal Register: January 23, 2006 (Volume 71, Number 14

DEPARTMENT OF DEFENSE

48 CFR Part 241

[DFARS Case 2003-D096]

Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Utility Rates Established by Regulatory Bodies

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update text pertaining to utility rates established by independent and nonindependent regulatory bodies. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.

DATES: Effective Date: January 23, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 2003-D096.

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/dars/dfars/transformation/index.htm.

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

Revises DFARS 241.201 to clarify that utility rates established by independent regulatory bodies may be relied upon as fair and reasonable; and

Adds DFARS 241.501 to clarify requirements for use of contract clauses addressing changes in rates for regulated and unregulated utility services.

DoD published a proposed rule at 70 FR 8565 on February 22, 2005. 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 contains clarifying DFARS amendments, with no significant change to DoD contracting policy.

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 241

Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 241 is amended as follows:

PART 241--ACQUISITION OF UTILITY SERVICES

1. The authority citation for 48 CFR part 241 continues to read as follows:

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

2. Section 241.201 is revised to read as follows:

241.201 Policy.

(1) DoD, as a matter of comity, generally complies with the current regulations, practices, and decisions of independent regulatory bodies. This policy does not extend to nonindependent regulatory bodies. (2) Purchases of utility services outside the United States may use--

(i) Formats and technical provisions consistent with local practice; and

(ii) Dual language forms and contracts.

(3) Rates established by an independent regulatory body--

(i) Are considered ``prices set by law or regulation'';

(ii) Are sufficient to set prices without obtaining cost or pricing data (see FAR Subpart 15.4); and

(iii) Are a valid basis on which prices can be determined fair and reasonable.

(4) Compliance with the regulations, practices, and decisions of independent regulatory bodies as a matter of comity is not a substitute for the procedures at FAR 41.202(a).

3. Section 241.501 is added to read as follows:

241.501 Solicitation provision and contract clauses.

(d)(1) Use a clause substantially the same as the clause at FAR 52.241-7, Change in Rates or Terms and Conditions of Service for Regulated Services, when the utility services to be provided are subject to an independent regulatory body.

(2) Use a clause substantially the same as the clause at FAR 52.241-8, Change in Rates or Terms and Conditions of Service for Unregulated Services, when the utility services to be provided are not subject to a regulatory body or are subject to a nonindependent regulatory body.

[Federal Register: January 23, 2006 (Volume 71, Number 14

DEPARTMENT OF DEFENSE

48 CFR Part 219 and Appendix I to Chapter 2

[DFARS Case 2004-D028]

Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; DoD Pilot Mentor-Protege Program

AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: DoD has adopted as final, without change, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Sections 841 and 842 of the National Defense Authorization Act for Fiscal Year 2005. Section 841 extends the length of the DoD Pilot Mentor-Protege Program for 5 additional years. Section 842 expands the Program to permit service-disabled veteran-owned small business concerns and HUBZone small business concerns to participate in the Program as protege firms.

EFFECTIVE DATE: January 23, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah Tronic, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0289; facsimile (703) 602-0350. Please cite DFARS Case 2004-D028.

SUPPLEMENTARY INFORMATION:

A. Background DoD published an interim rule at 70 FR 29644 on May 24, 2005, to implement Sections 841 and 842 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375). Section 841 extends, through September 30, 2010, the period during which companies may enter into agreements under the DoD Pilot Mentor-Protege Program; and extends, through September 30, 2013, the period during which mentor firms may incur costs that are eligible for reimbursement or credit under the Program. Section 842 expands the Program to permit service-disabled veteran-owned small business concerns and HUBZone small business concerns to participate in the Program as protege firms.

One source submitted comments on the interim rule. The respondent supported the rule, but recommended that DoD amend the rule to permit historically black colleges and universities and minority institutions (HBCU/MIs) to participate in the Program as protege firms. DoD was unable to adopt this recommendation, as there is presently no statutory authority that would permit expanding the Program to include HBCU/MIs. Therefore, DoD has adopted the interim 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 has prepared a final regulatory flexibility analysis consistent with 5 U.S.C. 604. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows:

This final rule implements Sections 841 and 842 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375). Section 841 extends, through September 30, 2010, the period during which companies may enter into agreements under the DoD Pilot Mentor-Protege Program; and extends, through September 30, 2013, the period during which mentor firms may incur costs that are eligible for reimbursement or credit under the Program. Section 842 expands the Program to permit service-disabled veteran-owned small business concerns and HUBZone small business concerns to participate in the Program as protege firms. The Program provides incentives for DoD contractors to assist protege firms in enhancing their capabilities and increasing their participation in Government and commercial contracts.

DoD received no public comments in response to the initial regulatory flexibility analysis. However, DoD received a comment in response to the interim rule that recommended amendment of the rule to permit historically black colleges and universities and minority institutions (HBCU/MIs) to participate in the DoD Pilot Mentor-Protege Program as protege firms. DoD was unable to adopt this recommendation, as there is presently no statutory authority that would permit expanding the Program to include HBCU/MIs.

Presently, there are 5,737 service-disabled veteran-owned small business concerns and 12,281 HUBZone small business concerns registered in the Central Contractor Registration database; and presently, there are 134 active mentor-protege agreements. Each protege firm must provide data to its mentor firm, annually for submission to the Government, regarding the progress of the protege firm in employment, revenues, and participation in DoD contracts. The data is required for each fiscal year of the Program participation term and for each of the two fiscal years following the expiration of the Program participation term. This information should be readily available to a company as part of its normal business practices.

The rule is expected to have a beneficial impact on service-disabled veteran-owned small business concerns and HUBZone small business concerns. There are no known significant alternatives to the rule. Participation in the DoD Pilot Mentor-Protege Program is voluntary.

C. Paperwork Reduction Act The information collection requirements of the DoD Pilot Mentor-Protege Program have been approved by the Office of Management and Budget under Control Number 0704-0332, for use through May 31, 2007.

List of Subjects in 48 CFR Part 219

Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System.

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR Part 219 and Appendix I to Chapter 2, which was published at 70 FR 29644 on May 24, 2005, is adopted as a final rule without change.

END OF DCN 200060123