DFARS CHANGE NOTICE 20070906

[Federal Register: September 6, 2007 (Volume 72, Number 172)]

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 236

Defense Federal Acquisition Regulation Supplement; Congressional Notification of Architect--Engineer Services/Military Family Housing Contracts (DFARS Case 2006-D015)

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 Section 1031(a)(37) of the National Defense Authorization Act for Fiscal Year 2004. Section 1031(a)(37) amended the requirements for submission of a notification to Congress before the award of a contract for architectural and engineering services or construction design in connection with military construction, military family housing, or restoration or replacement of damaged or destroyed facilities.

EFFECTIVE DATE: September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0310; facsimile (703) 602-7887. Please cite DFARS Case 2006-D015.

SUPPLEMENTARY INFORMATION:

A. Background DoD published an interim rule at 71 FR 58540 on October 4, 2006, to implement Section 1031(a)(37) of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1031(a)(37) amended the requirements at 10 U.S.C. 2807, for submission of a notification to Congress before the award of a contract for architectural and engineering services or construction design in connection with military construction, military family housing, or restoration or replacement of damaged or destroyed facilities. The amendments increased the contract dollar threshold for submission from $500,000 to $1,000,000; and reduced the time period for submission, from 21 to 14 days before obligation of funds, when the notification is provided in electronic medium.

DoD received no comments on the interim rule. 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 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 relates to reporting requirements that are internal to the Government.

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 236

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

PART 236--[AMENDED]

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR Part 236, which was published at 71 FR 58540 on October 4, 2006, is adopted as a final rule without change.

[Federal Register: September 6, 2007 (Volume 72, Number 172)][Rules and Regulations]

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System 48 CFR Chapter 2

Defense Federal Acquisition Regulation Supplement; Emergency Acquisitions (DFARS Case 2006-D036)

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 provide a single reference to DoD-unique acquisition flexibilities that may be used to facilitate and expedite acquisitions of supplies and services during emergency situations.

EFFECTIVE DATE: September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Benavides, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-1302; facsimile (703) 602-7887. Please cite DFARS Case 2006-D036.

SUPPLEMENTARY INFORMATION:

A. Background DoD published an interim rule at 72 FR 2631 on January 22, 2007, to provide a single reference to the acquisition flexibilities that may be used to facilitate and expedite DoD acquisitions of supplies and services during emergency situations. The rule supplements the Governmentwide acquisition flexibilities found in Part 18 of the Federal Acquisition Regulation.

DoD received no comments on the interim rule. 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 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 is a compilation of existing authorities, and makes no 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 Chapter 2

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

Chapter 2--Amended

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR Chapter 2, which was published at 72 FR 2631 on January 22, 2007, is adopted as a final rule without change.

[Federal Register: September 6, 2007 (Volume 72, Number 172)]

DEPARTMENT OF DEFENSE Defense Acquisition Regulations System

48 CFR Parts 212 and 234

Defense Federal Acquisition Regulation Supplement; Acquisition of Major Weapon Systems as Commercial Items (DFARS Case 2006-D012)

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 Section 803 of the National Defense Authorization Act for Fiscal Year 2006. Section 803 places limitations on the acquisition of a major weapon system as a commercial item.

EFFECTIVE DATE: September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0310; facsimile (703) 602-7887. Please cite DFARS Case 2006-D012.

SUPPLEMENTARY INFORMATION:

A. Background DoD published an interim rule at 71 FR 58537 on October 4, 2006, to implement Section 803 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). Section 803 permits the treatment or acquisition of a major weapon system as a commercial item only if (1) The Secretary of Defense determines that the major weapon system meets the definition of commercial item at 41 U.S.C. 403(12) and such treatment is necessary to meet national security objectives; and (2) the congressional defense committees are notified at least 30 days before such treatment or acquisition occurs.

DoD received no comments on the interim rule. 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 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 relates to internal DoD considerations regarding the acquisition of major weapon systems.

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 212 and 234

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

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR parts 212 and 234, which was published at 71 FR 58537 on October 4, 2006, is adopted as a final rule without change.

[Federal Register: September 6, 2007 (Volume 72, Number 172)]

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System48 CFR Parts 216 and 252

Defense Federal Acquisition Regulation Supplement; Labor Reimbursement on DoD Non-Commercial Time-and-Materials and Labor-Hour Contracts (DFARS Case 2006-D030)

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 provide policy for reimbursing labor costs on competitively awarded DoD non-commercial time-and-materials and labor-hour contracts.

EFFECTIVE DATE: September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (CPF), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-7887. Please cite DFARS Case 2006-D030.

SUPPLEMENTARY INFORMATION:

A. Background DoD published an interim rule at 71 FR 74469 on December 12, 2006, to clarify payment procedures for non-commercial time-and-materials and labor-hour contracts. Two sources submitted comments on the interim rule. A discussion of the comments is provided below.

1. Comment: One source stated that DoD should not require separate hourly rates for each category of labor performed by the contractor and each subcontractor on every competitively awarded non-commercial time-and-materials and labor-hour contract, since price competition will ensure the hourly rates are fair and reasonable and will eliminate potential abuses. The source also stated that the rationale cited in the interim rule for requiring separate hourly rates failed to address the benefits of adequate price competition and was not relevant to the requirement for separate rates. While not cited as rationale for requiring separate rates, the source stated that DoD may have adopted the rule to ensure subcontract labor meets the qualifications for the labor categories specified in the contract. If this is part of the rationale, DoD already has the ability to accomplish that objective through the subcontract consent provisions of FAR clause 52.244-2, which is mandatory for all time-and-materials contracts that exceed the simplified acquisition threshold. Another source stated that the rule eliminates the flexibility to select the proper approach, considering the advantages and disadvantages of the pricing options for hourly rates.

DoD Response: The FAR provisions authorize agencies to select, and make mandatory, one of the three options for pricing hourly rates. DoD believes it is in the best interest of the Department to select, and make mandatory, the FAR option that requires separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor. DoD believes the rationale cited in the interim rule adequately supports the requirement for separate rates. That rationale is not based on the benefits of adequate price competition, because those benefits are not affected by the requirement for separate hourly rates. The rationale is also not based on a need to ensure the subcontract labor meets the qualifications for the labor categories specified in the contract.

2. Comment: One source stated that the requirement for separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor will slow the acquisition process by requiring lengthy contract negotiations to establish separate hourly rates and contract modifications to add new subcontractors. In addition, the requirement will hinder contract performance, will tax DoD's acquisition workforce, and will likely prejudice qualified small and small disadvantaged businesses that only become known to the prime contractor after contract formation. Another source stated that the requirement for separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor will negatively impact contractor invoicing. Hours will have to be billed separately for each subcontractor and the prime for each fund cite. As a result, contractor indirect rates will increase to absorb the additional administrative costs. In addition, the administrative time and expense required to modify the contract to add new subcontractors will be substantial.

DoD Response: The FAR authorizes separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor to recognize there may be circumstances when separate rates are required to adequately protect the Government. As stated in the preamble to the interim rule, DoD believes it is in the best interest of the Department to require separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor. When making that determination, DoD considered the potential administrative burden and costs that may result from the rule. In addition, the rule is not intended to prejudice small and small disadvantaged businesses. If additional subcontractors, including small and small disadvantaged businesses, are needed to perform on the contract after the initial contract award, the contract can be modified to add the hourly rates for the new subcontractors.

3. Comment: One source stated that the requirement for separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor makes it difficult to evaluate competing offers during source selection. Offerors will propose separate hourly rates for the prime contractor and each subcontractor by labor category. Offerors will then apply those rates to the projected mix of labor (prime and/or subcontract) to determine the overall estimated price for each labor category. The Government will then use the average labor rate for the labor categories to evaluate competing offers. However, after contract award, the prime contractor can change the mix of labor performed by the prime and subcontractors for each labor category. As a result, the actual rates that will be paid for a labor category may be significantly different than the estimated rates used to evaluate the offer during source selection. The source also stated that the rule does not provide guidance on how to ensure the benefits of competition are maintained and whether cost or pricing data is required when new subcontractors are proposed. With blended fixed hourly rates, competition establishes the reasonableness of the fixed hourly rates, and those rates are used for payment regardless of whether the prime or any subcontractors perform the work. With the required separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor, the benefits of competition may be lost, since the rates on the contract apply only to the labor identified during the proposal stage.

DoD Response: DoD acknowledges that certain pricing challenges will arise from the use of separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor. DoD notes the pricing challenges do not originate with this rule. The FAR provisions also authorize the use of separate hourly rates for labor performed by the contractor and each subcontractor. While the DFARS rule requires reimbursement using a different rate for the prime versus the subcontractor, a similar difference existed prior to the rule. Under the prior FAR provisions, offerors could project a mix of labor (prime and subcontractor). After contract award, the prime could change the actual mix of labor, potentially resulting in significantly different costs than the estimated costs that were used to evaluate the offer during source selection. While there are pricing challenges associated with time-and-materials contracts, those challenges were not created by this rule.

4. Comment: One source stated that the rule could lead to the Government directing subcontract orders to reduce contract costs when subcontractors' fixed hourly rates are lower than the prime contractor's fixed hourly rates. If the Government directs subcontract orders, the prime contractor will lose its ability and responsibility to manage its resources and the Government may forfeit certain contract remedies.

DoD Response: In promulgating regulations, the assumption is that contracting personnel will follow the regulations. Nothing in the rule encourages contracting officers to wrongly direct subcontract orders.

5. Comment: One source stated that some of the subcontractors under the prime contract may compete with the prime for other prime contracts. The prime contractor may gain a competitive advantage over these other contractors on future competitions, since the prime will have insight into the composition of their rates.

DoD Response: Nothing in the rule provides prime contractors insight into the composition of their subcontract rates. The prime contractor will bill for subcontract labor using its negotiated fixed hourly rates for the subcontractor.

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 DFARS rule contains a substitute paragraph for use with the solicitation provision at FAR 52.216-29. The FAR provision contains three options for establishing fixed hourly rates on competitively awarded non-commercial time-and-materials and labor-hour contracts. The DFARS rule requires use of the FAR option that provides for the establishment of separate fixed hourly rates for each category of labor performed by the contractor and each subcontractor. The objective of the rule is to use the FAR option for establishing labor rates that is the most suitable for DoD contracts. The rule will apply to all entities interested in receiving DoD competitively awarded non-commercial time-and-materials and labor-hour contracts. The impact on small entities is unknown at this time.

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 216 and 252

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

PART 216--[AMENDED]

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR parts 216 and 252, which was published at 71 FR 74469 on December 12, 2006, is adopted as a final rule without change.

[Federal Register: September 6, 2007 (Volume 72, Number 172

DEPARTMENT OF DEFENSE Defense Acquisition Regulations System

48 CFR Part 237

Defense Federal Acquisition Regulation Supplement; Security-Guard Functions (DFARS Case 2006-D050)

AGENCY: Defense Acquisition Regulations System, 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 333 of the National Defense Authorization Act for Fiscal Year 2007. Section 333 extends, through September 30, 2009, the period during which contractor performance of security-guard functions at military installations or facilities is authorized to fulfill additional requirements resulting from the terrorist attacks on the United States on September 11, 2001.

DATES: Effective date: September 6, 2007.

Comment date: Comments on the interim rule should be submitted to the address shown below on or before November 5, 2007, to be considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2006-D050, using any of the following methods:

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

Follow the instructions for submitting comments.

E-mail: dfars@osd.mil. Include DFARS Case 2006-D050 in the subject line of the message.

Fax: (703) 602-7887.

Mail: Defense Acquisition Regulations System, Attn: Mr. Michael Benavides, OUSD (AT&L) DPAP (DARS), IMD 3D139, 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, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Benavides, (703) 602-1302.

SUPPLEMENTARY INFORMATION:

A. Background 10 U.S.C. 2465 prohibits DoD from entering into contracts for the performance of firefighting or security-guard functions at military installations or facilities, unless an exception applies. Section 332 of the National Defense Authorization Act for Fiscal Year 2003 (Pub. L. 107-314), Section 324 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-175), and Section 344 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163) have provided authority for DoD to waive the prohibition at 10 U.S.C. 2465, to fulfill additional requirements for security-guard functions at military installations or facilities resulting from the terrorist attacks on the United States on September 11, 2001.

Section 333 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) extends this authority through September 30, 2009, provided the total number of personnel employed to perform such functions does not exceed specified limits. This interim rule amends DFARS 237.102-70 to reflect the provisions of Section 333 of Public Law 109-364.

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. Although the rule may provide opportunities for small business concerns to receive contracts for the performance of security-guard functions at military installations or facilities, the economic impact is not expected to be substantial. 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 2006-D050.

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 333 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). Section 333 extends, through September 30, 2009, the period during which contractor performance of security-guard functions at military installations or facilities is authorized to fulfill additional requirements resulting from the terrorist attacks on the United States on September 11, 2001. Section 333 also places limitations on the total number of personnel that may be employed under this authority during fiscal years 2007 through 2009. 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 237

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

Therefore, 48 CFR part 237 is amended as follows:

PART 237--SERVICE CONTRACTING

1. The authority citation for 48 CFR part 237 continues to read as follows:

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

2. Section 237.102-70 is amended by revising paragraph (d) to read as follows:

237.102-70 Prohibition on contracting for firefighting or security-guard functions.

* * * * *

(d)(1) Under Section 332 of Public Law 107-314, as amended by Section 333 of Public Law 109-364, this prohibition does not apply to any contract that is entered into for any increased performance of security-guard functions at a military installation or facility undertaken in response to the terrorist attacks on the United States on September 11, 2001, if--

(i) Without the contract, members of the Armed Forces are or would be used to perform the increased security-guard functions;

(ii) The agency has determined that--

(A) Recruiting and training standards for the personnel who are to perform the security-guard functions are comparable to the recruiting and training standards for DoD personnel who perform the same security-guard functions;

(B) Contractor personnel performing such functions will be effectively supervised, reviewed, and evaluated; and

(C) Performance of such functions will not result in a reduction in the security of the installation or facility;

(iii) Contract performance will not extend beyond September 30, 2009; and

(iv) The total number of personnel employed to perform security-guard functions under all contracts entered into pursuant to this authority does not exceed--

(A) For fiscal year 2007, the total number of such personnel employed under such contracts on October 1, 2006;

(B) For fiscal year 2008, the number equal to 90 percent of the total number of such personnel employed under such contracts on October

1, 2006; and

(C) For fiscal year 2009, the number equal to 80 percent of the total number of such personnel employed under such contracts on October 1, 2006.

(2) Follow the procedures at PGI 237.102-70(d) to ensure that the personnel limitations specified in paragraph (d)(1)(iv) of this subsection are not exceeded.

[Federal Register: September 6, 2007 (Volume 72, Number 172)]

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System 48 CFR Part 237

Defense Federal Acquisition Regulation Supplement; Limitation on Contracts for the Acquisition of Certain Services (DFARS Case 2006-D054)

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 implement Section 832 of the National Defense Authorization Act for Fiscal Year 2007. Section 832 prohibits DoD from entering into a service contract to acquire a military flight simulator unless certain waiver criteria apply.

EFFECTIVE DATE: September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Benavides, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-1302; facsimile (703) 602-7887. Please cite DFARS Case 2006-D054.

SUPPLEMENTARY INFORMATION:

A. Background Section 832 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) prohibits DoD from entering into a service contract to acquire a military flight simulator, unless the Secretary of Defense determines that a waiver is necessary for national security purposes and provides an economic analysis to the congressional defense committees at least 30 days before the waiver takes effect. This final rule adds text at DFARS 237.102-71 to reflect the provisions of Section 832 of Public Law 109-364.

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

B. Regulatory Flexibility Act This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment under 41 U.S.C. 418b is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2006-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.

List of Subjects in 48 CFR Part 237

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

Therefore, 48 CFR part 237 is amended as follows:

PART 237--SERVICE CONTRACTING

1. The authority citation for 48 CFR part 237 continues to read as follows:

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

2. Section 237.102-71 is added to read as follows:

237.102-71 Limitation on service contracts for military flight simulators.

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

(1) Military flight simulator means any system to simulate the form, fit, and function of a military aircraft that has no commonly available commercial variant.

(2) Service contract means any contract entered into by DoD, the principal purpose of which is to furnish services in the United States through the use of service employees as defined in 41 U.S.C. 357(b).

(b) Under Section 832 of Public Law 109-364, DoD is prohibited from entering into a service contract to acquire a military flight simulator. However, the Secretary of Defense may waive this prohibition with respect to a contract, if the Secretary--

(1) Determines that a waiver is necessary for national security purposes; and

(2) Provides an economic analysis to the congressional defense committees at least 30 days before the waiver takes effect. This economic analysis shall include, at a minimum--

(i) A clear explanation of the need for the contract; and

(ii) An examination of at least two alternatives for fulfilling the requirements that the contract is meant to fulfill, including the following with respect to each alternative:

(A) A rationale for including the alternative.

(B) A cost estimate of the alternative and an analysis of the quality of each cost estimate.

(C) A discussion of the benefits to be realized from the alternative.

(D) A best value determination of each alternative and a detailed explanation of the life-cycle cost calculations used in the determination.

(c) When reviewing requirements or participating in acquisition planning that would result in a military department or defense agency acquiring a military flight simulator, the contracting officer shall notify the program officials of the prohibition in paragraph (b) of this subsection. If the program officials decide to request a waiver from the Secretary of Defense under paragraph (b) of this subsection, the contracting officer shall follow the procedures at PGI 237.102-71.

[Federal Register: September 6, 2007 (Volume 72, Number 172)]

DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 252

Defense Federal Acquisition Regulation Supplement; Taxpayer Identification Numbers (DFARS Case 2006-D037)

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 address requirements for validation of Taxpayer Identification Numbers as part of the Central Contractor Registration process. The DFARS changes are consistent with changes made to the Federal Acquisition Regulation.

EFFECTIVE DATE: September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0310; facsimile (703) 602-7887. Please cite DFARS Case 2006-D037.

SUPPLEMENTARY INFORMATION:

A. Background DFARS 252.204-7004 contains a substitute paragraph for use with the clause at FAR 52.204-7, Central Contractor Registration, to address DoD-unique requirements relating to contractor registration in the Central Contractor Registration (CCR) database. This final rule amends DFARS 252.204-7004 for consistency with changes made to FAR 52.204-7 in Item I of Federal Acquisition Circular 2005-10, published at 71 FR 36923 on June 28, 2006. The changes address requirements for the Government to validate a contractor's Taxpayer Identification Number, and for the contractor to consent to this validation, as part of the CCR registration process.

DoD published a proposed rule at 71 FR 2645 on January 22, 2007. 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 relates to an administrative requirement for TIN validation, which is performed by the Government. Contractors need only provide consent for TIN validation as part of the CCR registration process.

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 252

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

Therefore, 48 CFR part 252 is amended as follows:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1. The authority citation for 48 CFR part 252 continues to read as follows:

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

2. Section 252.204-7004 is amended as follows:

a. By revising the section heading, clause title, and clause date; and0

b. In paragraph (a), by revising the definition of ``Registered in the CCR database'' to read as follows:

252.204-7004 Alternate A, Central Contractor Registration.

ALTERNATE A, CENTRAL CONTRACTOR REGISTRATION (SEP 2007)

* * * * *

(a) * * *

``Registered in the CCR database'' means that--

(1) The Contractor has entered all mandatory information, including the DUNS number or the DUNS+4 number, into the CCR database;

(2) The Contractor's CAGE code is in the CCR database; and

(3) The Government has validated all mandatory data fields, to include validation of the Taxpayer Identification Number (TIN) with the Internal Revenue Service, and has marked the records ``Active.'' The Contractor will be required to provide consent for TIN validation to the Government as part of the CCR registration process.

[Federal Register: September 6, 2007 (Volume 72, Number 172)]

DEPARTMENT OF DEFENSE Defense Acquisition Regulations System

48 CFR Parts 207 and 227

Defense Federal Acquisition Regulation Supplement; Technical Data Rights (DFARS Case 2006-D055)

AGENCY: Defense Acquisition Regulations System, 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 802(a) of the National Defense Authorization Act for Fiscal Year 2007. Section 802(a) contains requirements for DoD to assess long-term technical data needs when acquiring major weapon systems and subsystems.

DATES: Effective date: September 6, 2007.

Comment date: Comments on the interim rule should be submitted to the address shown below on or before November 5, 2007, to be considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2006-D055, using any of the following methods:

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

Follow the instructions for submitting comments.

E-mail: dfars@osd.mil. Include DFARS Case 2006-D055 in the subject line of the message.

Fax: (703) 602-7887.

Mail: Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DARS), IMD 3D139, 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, including any personal information provided.

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

SUPPLEMENTARY INFORMATION:

A. Background Section 802(a) of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) requires that DoD program managers for major weapon systems, and subsystems of major weapon systems, assess the long-term technical data needs of such systems and subsystems and establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle. This interim rule amends DFARS Parts 207 and 227 to implement Section 802(a) of Public Law 109-364. Although the law does not address requirements for computer software, it is long-standing DoD policy to apply the same or similar requirements to both technical data and computer software, since many issues are common to both. Therefore, this interim DFARS rule applies to both technical data and computer software.

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 pertains to acquisition planning that is 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-D055.

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 802(a) of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). Section 802(a) requires DoD to revise regulations to incorporate requirements for program managers to assess the long-term technical data needs of major weapon systems and subsystems, and to establish corresponding acquisition strategies that provide for technical data rights needed to sustain such systems and subsystems over their life cycle. 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 207 and 227

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

Therefore, 48 CFR parts 207 and 227 are amended as follows:

1. The authority citation for 48 CFR parts 207 and 227 continues to read as follows:

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

PART 207--ACQUISITION PLANNING

2. Section 207.106 is amended by adding paragraph (S-70) to read as follows:

207.106 Additional requirements for major systems.

* * * * *

(S-70)(1) In accordance with Section 802(a) of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) and DoD policy requirements, acquisition plans for major weapon systems and subsystems of major weapon systems shall--

(i) Assess the long-term technical data and computer software needs of those systems and subsystems; and

(ii) Establish acquisition strategies that provide for the technical data deliverables and associated license rights needed to sustain those systems and subsystems over their life cycle. The strategy may include--

(A) The development of maintenance capabilities within DoD; or

(B) Competition for contracts for sustainment of the systems or subsystems.

(2) Assessments and corresponding acquisition strategies developed under this section shall--

(i) Be developed before issuance of a solicitation for the weapon system or subsystem;

(ii) Address the merits of including a priced contract option for the future delivery of technical data and computer software, and associated license rights, that were not acquired upon initial contract award;

(iii) Address the potential for changes in the sustainment plan over the life cycle of the weapon system or subsystem; and

(iv) Apply to weapon systems and subsystems that are to be supported by performance-based logistics arrangements as well as to weapon systems and subsystems that are to be supported by other sustainment approaches.

PART 227--PATENTS, DATA, AND COPYRIGHTS

3. Section 227.7103-1 is amended by adding paragraph (f) to read as follows:

227.7103-1 Policy.

* * * * *

(f) For acquisitions involving major weapon systems or subsystems of major weapon systems, the acquisition plan shall address acquisition strategies that provide for technical data and the associated license rights in accordance with 207.106(S-70).

4. Section 227.7203-1 is amended by adding paragraph (e) to read as follows:

227.7203-1 Policy.

* * * * *

(e) For acquisitions involving major weapon systems or subsystems of major weapon systems, the acquisition plan shall address acquisition strategies that provide for computer software and computer software documentation, and the associated license rights, in accordance with 207.106(S-70).

[Federal Register: September 6, 2007 (Volume 72, Number 172)][Rules and Regulations]

DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 202 and 252

Defense Federal Acquisition Regulation Supplement; Technical Amendments

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

ACTION: Final rule.

SUMMARY: DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to update the list of Air Force and Navy contracting activities and to remove obsolete text.

EFFECTIVE DATE: September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0311; facsimile (703) 602-7887.

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

Section 202.101. Updates the list of Air Force and Navy contracting activities.

Section 252.219-7009. Removes an obsolete date within a reference to a partnership agreement between DoD and the Small Business Administration.

List of Subjects in 48 CFR Parts 202 and 252

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

Therefore, 48 CFR Parts 202 and 252 are amended as follows:

1. The authority citation for 48 CFR Parts 202 and 252 continues to read as follows:

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

PART 202--DEFINITIONS OF WORDS AND TERMS

2. Section 202.101 is amended in the definition of ``Contracting activity'' as follows:

a. In the list with the heading ``NAVY'', by removing ``Deputy, Acquisition Management, Office of the Assistant Secretary of the Navy (Research, Development, and Acquisition)'' and adding in its place ``Office of the Deputy Assistant Secretary of the Navy (Acquisition & Logistics Management)''; and0

b. By revising the list with the heading ``AIR FORCE''. The revised list reads as follows:

202.101 Definitions.

* * * * *

AIR FORCE

Office of the Assistant Secretary of the Air Force (Acquisition)

Office of the Deputy Assistant Secretary (Contracting)

Air Force District of Washington

Air Force Operational Test & Evaluation Center

Air Force Special Operations Command

United States Air Force Academy

Air Force Materiel Command

Air Force Reserve Command

Air Combat Command

Air Mobility Command

Air Education and Training Command

Pacific Air Forces

United States Air Forces in Europe

Air Force Space Command

Program Executive Office for Aircraft Systems

Program Executive Office for Command and Control & Combat Support Systems

Program Executive Office for Combat and Mission Support

Program Executive Office for F/A-22 Programs

Program Executive Office for Joint Strike Fighter

Program Executive Office for Weapons

* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.219-7009 [Amended]

3. Section 252.219-7009 is amended as follows:

a. By revising the clause date to read ``(SEP 2007)''; and

b. In paragraph (a), in the first sentence, by removing ``dated February 1, 2002,''.

END OF DCN 20070906