[Federal Register: September 8, 2006 (Volume 71, Number 174)]

[Rules and Regulations]

[Page 53045-53046]

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

[DOCID:fr08se06-22]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 225 and 252

RIN 0750-AF34

Defense Federal Acquisition Regulation Supplement; Prohibition on Acquisition From Communist Chinese Military Companies (DFARS Case 2006-D007)

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

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 1211 of the National Defense Authorization Act for Fiscal Year 2006. Section 1211 prohibits DoD from acquiring United States Munitions List items from Communist Chinese military companies.

DATES: Effective date: September 8, 2006.

Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before November 7, 2006, to be considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2006-D007, using any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov>.

Follow the instructions for submitting comments.

E-mail: dfars@osd.mil <mailto:dfars@osd.mil>. Include DFARS Case 2006-D007 in the subject line of the message.

Fax: (703) 602-0350.

Mail: Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.

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

Comments received generally will be posted without change to http://www.regulations.gov <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov>, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule adds DFARS policy and a contract clause to implement Section 1211 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). Section 1211 prohibits DoD from acquiring goods or services, through a contract or a subcontract with a Communist Chinese military company, if the goods or services being acquired are on the munitions list of the International Trafficking in Arms Regulations (the United States Munitions List at 22 CFR Part 121). Section 1211 also provides for certain exceptions and waiver authority.

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 affects only those entities that are a part of the industrial base of the People's Republic of China or that are owned or controlled by, or affiliated with, an element of the Government or armed forces of the People's Republic of China. 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 2006-D007.

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 1211 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). Section 1211 prohibits DoD from acquiring goods or services from a Communist Chinese military company, if the goods or services being acquired are on the United States Munitions List maintained by the Department of State. Comments received in response to this interim rule will be considered in the formation of the final rule.

List of Subjects in 48 CFR Parts 225 and 252

Government procurement.

Michele P. Peterson,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 225 and 252 are amended as follows:

1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows:

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

PART 225--FOREIGN ACQUISITION

2. Sections 225.770 through 225.770-5 are added to read as follows:

225.770 Prohibition on acquisition of United States Munitions List items from Communist Chinese military companies.

This section implements Section 1211 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). See PGI 225.770 for additional information relating to this statute, the terms used in this section, and the United States Munitions List.

225.770-1 Definitions.

As used in this section--

(a) Communist Chinese military company and United States Munitions List are defined in the clause at 252.225-7007, Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies.

(b) Component means an item that is useful only when used in conjunction with an end item (22 CFR 121.8).

(c) Part means any single unassembled element of a major or minor component, accessory, or attachment, that is not normally subject to disassembly without the destruction or impairment of design use (22 CFR 121.8).

225.770-2 Prohibition.

Do not acquire supplies or services covered by the United States Munitions List (USML) (22 CFR part 121), through a contract or subcontract at any tier, from any Communist Chinese military company. This prohibition does not apply to components and parts of covered items unless the components and parts are themselves covered by the USML.

225.770-3 Exceptions.

The prohibition in 225.770-2 does not apply to supplies or services acquired--

(a) In connection with a visit to the People's Republic of China by a vessel or an aircraft of the U.S. armed forces;

(b) For testing purposes; or

(c) For the purpose of gathering intelligence.

225.770-4 Identifying USML items.

(a) Before issuance of a solicitation, the requiring activity shall notify the contracting officer in writing whether the items to be acquired are covered by the USML. The notification shall identify any covered item(s) and shall provide the pertinent USML reference(s) from 22 CFR Part 121.

(b) The USML includes defense articles and defense services that fall into 21 categories. Since not all USML items are themselves munitions (e.g., protective personnel equipment, military training equipment), the requiring activity should consult the USML before concluding that an item is or is not covered by the USML.

225.770-5 Waiver of prohibition.

(a) The prohibition in 225.770-2 may be waived, on a case-by-case basis, if an official identified in paragraph (b) of this subsection determines that a waiver is necessary for national security purposes.

(b) The following officials are authorized, without power of delegation, to make the determination specified in paragraph (a) of this subsection:

(1) The Under Secretary of Defense (Acquisition, Technology, and Logistics).

(2) The Secretaries of the military departments.

(3) The Component Acquisition Executive of the Defense Logistics Agency.

(c) The official granting a waiver shall notify the congressional defense committees within 30 days after the date of the waiver.

3. Section 225.1103 is amended by adding paragraph (4) to read as follows:

225.1103 Other provisions and clauses.

* * * * *

(4) Unless an exception in 225.770-3 applies, use the clause at 252.225-7007, Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies, in solicitations and contracts involving the delivery of items covered by the United States Munitions List.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Section 252.225-7007 is added to read as follows:

252.225-7007 Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies.

As prescribed in 225.1103(4), use the following clause:Prohibition On Acquisition of United States Munitions List Items From Communist Chinese Military Companies (SEP 2006)

(a) Definitions. As used in this clause--

Communist Chinese military company means any entity that is--

(1) A part of the commercial or defense industrial base of the People's Republic of China; or

(2) Owned or controlled by, or affiliated with, an element of the Government or armed forces of the People's Republic of China.

United States Munitions List means the munitions list of the International Traffic in Arms Regulation in 22 CFR Part 121.

(b) Any supplies or services covered by the United States Munitions List that are delivered under this contract may not be acquired, directly or indirectly, from a Communist Chinese military company.

(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts for items covered by the United States Munitions List.

(End of clause)

[FR Doc. E6-14895 Filed 9-7-06; 8:45 am]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 207

[DFARS Case 2003-D044]

Defense Federal Acquisition Regulation Supplement; Acquisition Planning

AGENCY: Defense Acquisition Regulations System, 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 on acquisition planning. 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: September 8, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0302; facsimile (703) 602-0350. Please cite DFARS Case 2003-D044.

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.

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

Increase the dollar thresholds for preparation of written acquisition plans;

Update acquisition planning requirements for consistency with changes to the DoD 5000 series publications;

Delete unnecessary text relating to contract administration and class justifications for other than full and open competition;

Clarify requirements for funding of leases; and

Delete text addressing the contents of written acquisition plans. Text on this subject has been relocated to the DFARS companion resource, Procedures, Guidance, and Information (PGI), available at http://www.acq.osd.mil/dpap/dars/pgi <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acq.osd.mil/dpap/dars/pgi>.

DoD published a proposed rule at 70 FR 54693 on September 16, 2005. DoD received no comments on the proposed rule and has adopted the proposed rule as a final rule, with minor editorial changes at 207.103(h) and 207.471(c).

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 addresses internal DoD requirements for acquisition planning.

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 207

Government procurement.

Michele P. Peterson,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 207 is amended as follows:

PART 207--ACQUISITION PLANNING

1. The authority citation for 48 CFR part 207 continues to read as follows:

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

207.102 [Removed]

2. Section 207.102 is removed.

3. Section 207.103 is revised to read as follows:

207.103 Agency-head responsibilities.

(d)(i) Prepare written acquisition plans for--

(A) Acquisitions for development, as defined in FAR 35.001, when the total cost of all contracts for the acquisition program is estimated at $10 million or more;

(B) Acquisitions for production or services when the total cost of all contracts for the acquisition program is estimated at $50 million or more for all years or $25 million or more for any fiscal year; and

(C) Any other acquisition considered appropriate by the department or agency.

(ii) Written plans are not required in acquisitions for a final buy out or one-time buy. The terms ``final buy out'' and ``one-time buy'' refer to a single contract that covers all known present and future requirements. This exception does not apply to a multiyear contract or a contract with options or phases.

(e) Prepare written acquisition plans for acquisition programs meeting the thresholds of paragraphs (d)(i)(A) and (B) of this section on a program basis. Other acquisition plans may be written on either a program or an individual contract basis.

(g) The program manager, or other official responsible for the program, has overall responsibility for acquisition planning.

(h) For procurement of conventional ammunition, as defined in DoDD 5160.65, Single Manager for Conventional Ammunition (SMCA), the SCMA will review the acquisition plan to determine if it is consistent with retaining national technology and industrial base capabilities in accordance with 10 U.S.C. 2304(c)(3) and Section 806 of Public Law 105-261. The department or agency--

(i) Shall submit the acquisition plan to the address in PGI 207.103(h); and

(ii) Shall not proceed with the procurement until the SMCA provides written concurrence with the acquisition plan. In the case of a non-concurrence, the SCMA will resolve issues with the Army Office of the Executive Director for Conventional Ammunition.

207.104 [Removed]

4. Section 207.104 is removed.

5. Section 207.105 is revised to read as follows:

207.105 Contents of written acquisition plans.

In addition to the requirements of FAR 7.105, planners shall follow the procedures at PGI 207.105.

6. Section 207.471 is amended by revising paragraphs (b) and (c) to read as follows:

207.471 Funding requirements.

* * * * *

(b) DoD leases are either capital leases or operating leases. See FMR 7000.14-R, Volume 4, Chapter 7, Section 070207.

(c) Use procurement funds for capital leases, as these are essentially installment purchases of property.

[FR Doc. E6-14907 Filed 9-7-06; 8:45 am]

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[Page 53047-53049]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulation System

48 CFR Parts 237 and 252

[DFARS Case 2005-D007]

Defense Federal Acquisition Regulation Supplement; Training for Contractor Personnel Interacting With Detainees

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

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 1092 of the National Defense Authorization Act for Fiscal Year 2005. Section 1092 requires that DoD contractor personnel who interact with detainees receive training regarding the applicable international obligations and laws of the United States.

DATES: Effective Date: September 8, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0328; facsimile (703) 602-0350. Please cite DFARS Case 2005-D007.

SUPPLEMENTARY INFORMATION:

A. Background

DoD published an interim rule at 70 FR 52032 on September 1, 2005, to implement Section 1092 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375). Section 1092 requires DoD to prescribe policies to ensure that DoD contractor personnel interacting with detainees receive training regarding the international obligations and laws of the United States applicable to the detention of personnel. One industry association submitted comments on the interim rule. A discussion of the comments is provided below.

1. Comment: Definitions

The respondent recommended addition of a definition of the term ``personnel interacting with detainees'' in section 237.171-2, consistent with the definition in the contract clause.

DoD Response. Section 237.171-2 of the final rule includes a definition of ``personnel interacting with detainees'' as well as a definition of ``combatant commander,'' since that term is also used within 237.171.

2. Comment: Policy

a. Clarification of the Role of Combatant Commander. The respondent recommended clarification of four separate and distinct responsibilities of the combatant commander: Develop the training curriculum; determine and provide an appropriate place for the training; conduct the training; and issue a training receipt. The respondent provided a proposed rewrite of 237.171-3(a) and (b) to address these responsibilities.

DoD Response. DoD has revised 237.171-3(a) and (b) to clarify responsibilities as follows:

Paragraph (a) introductory text--DoD has replaced the phrase ``individuals detained by DoD on behalf of the U.S. Government'' with the word ``detainees'' for consistency with the terminology used throughout the rule. DoD has not adopted the respondent's recommendation to further amend 237.171-3 to more specifically describe the contracts that are subject to the rule's requirements, since the clause prescription at 237.171-4 adequately describes the criteria for application of the policy.

Paragraph (a)(1)--DoD has clarified that the training will be provided by the Government. DoD has not adopted the respondent's recommendation to state that the training will be conducted by U.S. Government personnel, since the training might be conducted by a Government contractor.

Paragraph (a)(2)--DoD has revised the requirement for contractor personnel to ``Acknowledge receipt of the training'' to a requirement for contractor personnel to ``Provide a copy of the training receipt document to the contractor.'' Although the law requires that the Commander of detention facilities provide training and documented receipt of receiving training, it also requires that each contract in which contractor personnel will interact with detainees include a requirement that such contractor personnel have received training, and documented acknowledgement of receiving training. Taken alone, this second requirement might be interpreted to mean that the contractor personnel must document acknowledgement of receiving training. It is more reasonable, in view of the first requirement, to interpret the law to mean that the contractor personnel must receive the documented acknowledgement of receiving training from the training provider. The receipt generated may not require any acknowledgement as a condition for issuance. The receipt itself represents an acknowledgement that the training was received. Further, it may not be U.S. Government personnel that issue the receipt. For example, the receipt might be automatically issued upon completion of a computer-hosted training module.

Paragraph (b)--DoD has revised paragraph (b) to clarify that the combatant commander will ``arrange for'' the training (rather than ``provide'' the training). The combatant commander most likely will not be the specific person performing the training. DoD considers it unnecessary for the DFARS to specify that the training is to be determined appropriate by the combatant commander or that the combatant commander determines the geographic location of the training. This is implied in the concept of Government-provided training that is arranged by the combatant commander. Furthermore, location may not be an issue, as in the case of computer-based training.

b. PGI Guidance/DoD Policy Memorandum. The respondent stated that the interim rule directed the reader to PGI 237.171-3(c) for additional guidance, but does not actually provide guidance, only a copy of the memorandum issued by the Secretary of Defense. The respondent recommended inclusion of specific relevant guidance or deletion of the reference.

DoD Response. The reference at DFARS 237.171-3(c) has been deleted. However, the policy memorandum has been retained in PGI for informational purposes.

c. Standardized Training. The respondent recommended that the final rule, PGI, or additional departmental guidance provide standardized training, based on the belief that there is a core of training that should be the same everywhere, with the addition of appropriate training to accommodate variations in religious, social, and national customs applicable to a particular facility or detainee.

DoD Response. It is outside the scope of authority of the DFARS and PGI to require a common core of training. The Secretary of Defense has assigned the responsibility for development of training to the combatant commanders. Furthermore, it may be impracticable to require combatant commanders to have identical, standardized training. Each combatant commander should have the prerogative and flexibility to decide what training is appropriate for the command.

d. Standardized Format for Training Certificates. The respondent recommended that the final rule or PGI provide a standardized format for the training certificate and a standard form for acknowledgement (not a certification).

DoD Response. DoD does not agree that a standard training certificate is necessary, since preparation of a certificate should be a relatively simple task to be accomplished in conjunction with development of the appropriate training. Neither the interim nor the final DFARS rule includes a requirement for certification by contractor employees, and the final rule excludes the interim rule requirement for acknowledgement by contractor personnel. Contractor personnel need only provide the training receipt to the contractor.

e. Transferability of Training. The respondent recommended that the final rule provide policy guidance that would permit a geographic combatant commander to waive the training requirement for any contractor employee who has already received appropriate training within the past year, including policy addressing the transferability of training, even if at a different facility within a single combatant commander's area of responsibility or when there may be a different combatant commander. This is intended to facilitate cross-utilization of contractor employees.

DoD Response. If the contractor employee has documented receipt of training within the past year, it is at the discretion of the combatant commander whether this training is adequate for the particular area and facility to which the employee has transferred. The transferability of training could vary significantly, depending on individual circumstances.

f. Allowability of Costs. The respondent recommended that the final rule address the policy that contractor and employee expenses incurred in making the employee available for and taking the Government-provided training is an allowable cost on cost-reimbursement contracts.

DoD Response. It is unnecessary to specifically identify these contractor training costs as allowable. FAR Part 31 adequately sets forth the cost principles on allowability of costs.

3. Contract Clause

a. Responsibilities of Combatant Commander. The respondent had the same concerns regarding clarification of the responsibilities of the combatant commander that have been addressed in the discussion of Comment 2.a. above.

b. Arranging Training. The respondent was concerned that the ability to execute this contractual obligation is outside the control of the contractor, and recommended that the contracting officer be required to arrange the training.

DoD Response. The combatant commander will arrange for the training to be provided, and the contractor must make its employees available to receive the training. It would be impractical for the contracting officer to become involved in scheduling the required training. For efficiency, this responsibility should be shared by the combatant commander organization and the contractor.

c. Acknowledging Training. The respondent considered the requirement for the contractor to arrange for its personnel to acknowledge receipt of the training to be unclear and confusing, was concerned that the text at DFARS 237.171-3 imposes the acknowledgement requirement only on the employee, and recommended that DoD rely on company practices to get the information to the contractor.

DoD Response. DoD has removed the acknowledgment requirement from the final rule and has replaced it with a requirement for contractor retention of the training receipt for a specified period. It is the responsibility of the contractor to impose the requirement on its employees and to implement procedures for ensuring that training receipts are provided by employees.

d. Record Retention. The respondent did not object to a record retention requirement, but considered that the requirement should be imposed only on the contractor, not on the contractor employee. In addition, the respondent recommended an alternative record retention period of 3 years after all work on the contract has been performed.

DoD Response. DoD has included the recommended changes in the final rule.

e. Flowdown. The respondent had concerns about requirements for flowdown of the clause to subcontracts, and the responsibility of the prime contractor versus the responsibility of the subcontractor.

DoD Response. The language in paragraph (c) of the contract clause is the standard language used in FAR/DFARS clauses requiring flowdown to subcontractors. Paragraph (c) requires the contractor to include the ``substance'' of the clause in its subcontracts. This wording allows the contractor to adjust the terminology appropriately to reflect the relationship between the contractor and its subcontractor. The clause does not require that subcontractors flow the paperwork up to the prime contractor.

f. Waiver Authority. The respondent recommended a policy that provides temporary waiver authority to the contracting officer or the geographic combatant commander if training cannot be developed in a timely manner in advance of contractor personnel interacting with detainees, in order to meet contract requirements.

DoD Response. The law does not require advance training, but it should be strongly encouraged. Therefore, DoD has amended paragraph (b)(2)(i) of the contract clause to require training ``as soon as possible if, for compelling reasons, the Contracting Officer authorizes interaction with detainees prior to receipt of such training.''

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 Government will provide the training required by the rule.

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.

Accordingly, the interim rule amending 48 CFR Parts 237 and 252, which was published at 70 FR 52032 on September 1, 2005, is adopted as a final rule with the following changes:

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. Sections 237.171-2 and 237.171-3 are revised to read as follows:

237.171-2 Definition.

Combatant commander, detainee, and personnel interacting with detainees, as used in this section, are defined in the clause at 252.237-7019, Training for Contractor Personnel Interacting with Detainees.

237.171-3 Policy.

(a) Each DoD contract in which contractor personnel, in the course of their duties, interact with detainees shall include a requirement that such contractor personnel--

(1) Receive Government-provided training regarding the international obligations and laws of the United States applicable to the detention of personnel, including the Geneva Conventions; and

(2) Provide a copy of the training receipt document to the contractor.

(b) The combatant commander responsible for the area where the detention or interrogation facility is located will arrange for the training and a training receipt document to be provided to contractor personnel. For information on combatant commander geographic areas of responsibility and point of contact information for each command, see PGI 237.171-3(b).

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.212-7001 [Amended]

3. Section 252.212-7001 is amended as follows:

a. By revising the clause date to read ``(SEP 2006)''; and

b. In paragraphs (b)(18) and (c)(2) by removing ``(SEP 2005)'' and adding in its place ``(SEP 2006)''.

4. Section 252.237-7019 is amended by revising the clause date and paragraphs (b) and (c) to read as follows:

252.237-7019 Training for Contractor Personnel Interacting with Detainees.

As prescribed in 237.171-4, use the following clause:

Training For Contractor Personnel Interacting With Detainees (SEP 2006)

* * * * *

(b) Training requirement. This clause implements Section 1092 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375).

(1) The Combatant Commander responsible for the area where a detention or interrogation facility is located will arrange for training to be provided to contractor personnel interacting with detainees. The training will address the international obligations and laws of the United States applicable to the detention of personnel, including the Geneva Conventions. The Combatant Commander will arrange for a training receipt document to be provided to personnel who have completed the training.

(2)(i) The Contractor shall arrange for its personnel interacting

with detainees to--

(A) Receive the training specified in paragraph (b)(1) of this clause--

(1) Prior to interacting with detainees, or as soon as possible if, for compelling reasons, the Contracting Officer authorizes interaction with detainees prior to receipt of such training; and

(2) Annually thereafter; and

(B) Provide a copy of the training receipt document specified in paragraph (b)(1) of this clause to the Contractor for retention.

(ii) To make these arrangements, the following points of contact apply:

[Contracting Officer to insert applicable point of contact information cited in PGI 237.171-3(b).]

(3) The Contractor shall retain a copy of the training receipt document(s) provided in accordance with paragraphs (b)(1) and (2) of this clause until the contract is closed, or 3 years after all work required by the contract has been completed and accepted by the Government, whichever is sooner.

(c) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (c), in all subcontracts that may require subcontractor personnel to interact with detainees in the course of their duties.

* * * * *

[FR Doc. E6-14897 Filed 9-7-06; 8:45 am]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204, 236, and 252

Defense Federal Acquisition Regulation Supplement; Technical Amendments

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

ACTION: Final rule.

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SUMMARY: DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to update an organization name and reference numbers.

DATES: Effective Date: September 8, 2006.

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

SUPPLEMENTARY INFORMATION: This final rule amends DFARS text as follows:

Section 204.805. Reflects the change in name of the ``General Accounting Office'' to the ``Government Accountability Office''.

Section 236.602-1. Updates a reference to a paragraph of the Federal Acquisition Regulation.

Section 252.225-7023. Updates a DFARS reference within a contract clause.

List of Subjects in 48 CFR Parts 204, 236, and 252

Government procurement.

Michele P. Peterson,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 204, 236, and 252 are amended as follows:

1. The authority citation for 48 CFR parts 204, 236, and 252 continues to read as follows:

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

PART 204--ADMINISTRATIVE MATTERS

204.805 [Amended]

2. Section 204.805 is amended in paragraph (2), in the second sentence, by removing ``General Accounting'' and adding in its place ``Government Accountability''.

PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

236.602-1 [Amended]

3. Section 236.602-1 is amended in paragraph (a), in the first sentence, by removing ``5.205(c)'' and adding in its place ``5.205(d)''.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.225-7023 [Amended]

4. Section 252.225-7023 is amended as follows:

a. By revising the clause date to read ``(SEP 2006)''; and

b. In paragraph (b)(2), by removing ``225.7020-3'' and adding in its place ``225.7010-3''.

[FR Doc. E6-14906 Filed 9-7-06; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register: September 8, 2006 (Volume 71, Number 174)]

[Rules and Regulations]

[Page 53042-53043]

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

[DOCID:fr08se06-19]

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 202, 210, 213, 215, and 219

RIN 0750-AF36

Defense Federal Acquisition Regulation Supplement; Limitations on Tiered Evaluation of Offers (DFARS Case 2006-D009)

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

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 816 of the National Defense Authorization Act for Fiscal Year 2006. Section 816 requires DoD to prescribe guidance on the use of tiered evaluation of offers for contracts and for task or delivery orders under contracts.

DATES: Effective date: September 8, 2006.

Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before November 7, 2006, to be considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2006-D009, using any of the following methods:

[cir] Federal eRulemaking Portal: http://www.regulations.gov <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov>.

Follow the instructions for submitting comments.

[cir] E-mail: dfars@osd.mil <mailto:dfars@osd.mil>. Include DFARS Case 2006-D009 in the subject line of the message.

[cir] Fax: (703) 602-0350.

[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Deborah Tronic, OUSD(AT&L)DPAP(DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.

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

Comments received generally will be posted without change to http://www.regulations.gov <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov>, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah Tronic, (703) 602-0289.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule adds DFARS policy to implement Section 816 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). Section 816 requires DoD to prescribe guidance on the use of tiered evaluation of offers for contracts and for task or delivery orders under contracts. The guidance must include a prohibition on the use of tiered evaluation of offers unless the contracting officer (1) has conducted market research in accordance with Part 10 of the Federal Acquisition Regulation; (2) is unable, after conducting market research, to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the contract or order; and (3) includes in the contract file a written explanation of why the contracting officer was unable to make the determination.

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 relates to market research and documentation requirements performed by the Government. 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 2006-D009.

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 816 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). Section 816 requires DoD to prescribe guidance prohibiting the use of tiered evaluation of offers unless the contracting officer has complied with certain market research and documentation requirements. Comments received in response to this interim rule will be considered in the formation of the final rule.

List of Subjects in 48 CFR Parts 202, 210, 213, 215, and 219

Government procurement.

Michele P. Peterson,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 202, 210, 213, 215, and 219 are amended as

follows:

1. The authority citation for 48 CFR parts 202, 210, 213, 215, and 219 continues to read as follows:

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

PART 202--DEFINITIONS

2. Section 202.101 is amended by adding a definition of ``Tiered evaluation of offers'' to read as follows:

202.101 Definitions.

* * * * *

Tiered evaluation of offers, also known as cascading evaluation of offers, means a procedure used in negotiated acquisitions, when market research is inconclusive for justifying limiting competition to small business concerns, whereby the contracting officer--

(1) Solicits and receives offers from both small and other than small business concerns;

(2) Establishes a tiered or cascading order of precedence for evaluating offers that is specified in the solicitation; and

(3) If no award can be made at the first tier, evaluates offers at the next lower tier, until award can be made.

PART 210--MARKET RESEARCH

3. Section 210.001 is revised to read as follows:

210.001 Policy.

(a) In addition to the requirements of FAR 10.001(a), agencies shall--

(i) Conduct market research appropriate to the circumstances before--

(A) Soliciting offers for acquisitions that could lead to a consolidation of contract requirements as defined in 207.170-2; or

(B) Issuing a solicitation with tiered evaluation of offers (Section 816 of Public Law 109-163); and

(ii) Use the results of market research to determine--

(A) Whether consolidation of contract requirements is necessary and justified in accordance with Sec. 207.170-3; or

(B) Whether the criteria in FAR part 19 are met for setting aside the acquisition for small business or, for a task or delivery order, whether there are a sufficient number of qualified small business concerns available to justify limiting competition under the terms of the contract. If the contracting officer cannot determine whether the criteria are met, the contracting officer shall include a written explanation in the contract file as to why such a determination could not be made (Section 816 of Public Law 109-163).

PART 213--SIMPLIFIED ACQUISITION PROCEDURES

4. Section 213.106-1-70 is added to read as follows:

213.106-1-70 Soliciting competition--tiered evaluation of offers.

(a) The tiered or cascading order of precedence used for tiered evaluation of offers shall be consistent with FAR part 19.

(b) Consideration shall be given to the tiers of small businesses (e.g., 8(a), HUBZone small business, service-disabled veteran-owned small business, small business) before evaluating offers from other than small business concerns.

(c) Before issuing a solicitation with a tiered evaluation of offers--(1) The contracting officer shall conduct market research, in accordance with FAR part 10 and part 210, to determine--

(i) Whether the criteria in FAR part 19 are met for setting aside the acquisition for small business; or

(ii) For a task or delivery order, whether there are a sufficient number of qualified small business concerns available to justify limiting competition under the terms of the contract; and

(2) If the contracting officer cannot determine whether the criteria in paragraph (c)(1) of this section are met, the contracting officer shall include a written explanation in the contract file as to why such a determination could not be made (Section 816 of Public Law 109-163).

PART 215--CONTRACTING BY NEGOTIATION

5. Subpart 215.2 is added to read as follows:

Subpart 215.2--Solicitation and Receipt of Proposals and Information.

215.203-70 Requests for proposals--tiered evaluation of offers.

(a) The tiered or cascading order of precedence used for tiered evaluation of offers shall be consistent with FAR part 19.

(b) Consideration shall be given to the tiers of small businesses (e.g., 8(a), HUBZone small business, service-disabled veteran-owned small business, small business) before evaluating offers from other than small business concerns.

(c) Before issuing a solicitation with a tiered evaluation of offers--

(1) The contracting officer shall conduct market research, in accordance with FAR part 10 and part 210, to determine--

(i) Whether the criteria in FAR part 19 are met for setting aside the acquisition for small business; or

(ii) For a task or delivery order, whether there are a sufficient number of qualified small business concerns available to justify limiting competition under the terms of the contract; and

(2) If the contracting officer cannot determine whether the criteria in paragraph (c)(1) of this section are met, the contracting officer shall include a written explanation in the contract file as to why such a determination could not be made (Section 816 of Public Law 109-163).

PART 219--SMALL BUSINESS PROGRAMS

6. Section 219.1102 is amended by adding paragraph (c) to read as follows:

219.1102 Applicability.

* * * * *

(c) Also, do not use the price evaluation adjustment in acquisitions that use tiered evaluation of offers, until a tier is reached that considers offers from other than small business concerns.

7. Subpart 219.13 is added to read as follows:

Subpart 219.13--Historically Underutilized Business Zone (HUBZone) Program

219.1307 Price evaluation preference for HUBZone small business

concerns.

(a) Also, do not use the price evaluation preference in acquisitions that use tiered evaluation of offers, until a tier is reached that considers offers from other than small business concerns.

[FR Doc. E6-14896 Filed 9-7-06; 8:45 am]

BILLING CODE 5001-08-P