[Federal Register: October 29, 2010 (Volume 75, Number 209)]

[Rules and Regulations]

[Page 66686]

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

[DOCID:fr29oc10-16]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

RIN 0750-AG60

Defense Federal Acquisition Regulation Supplement; Balance of

Payments Program Exemption for Commercial Information Technology--

Construction Material (DFARS Case 2009-D041)

AGENCY: Defense Acquisition Regulations System, Department of Defense

(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal

Acquisition Regulation Supplement (DFARS) to implement the exemption

from the Balance of Payments Program for construction material that is

commercial information technology.

DATES: Effective Date: October 29, 2010.

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

SUPPLEMENTARY INFORMATION:

I. Background

DoD is amending the DFARS to implement in the clauses at 252.225-

7044, Balance of Payments Program--Construction Material, and 252.225-

7045, Balance of Payments Program--Construction Material under Trade

Agreements, the exemption from the Balance of Payments Program for

construction material that is commercial information technology.

DoD published a proposed rule in the Federal Register (75 FR 32636)

on June 8, 2010. DoD received no comments on the proposed rule.

Therefore, DoD is adopting the proposed rule as a final rule without

change.

II. Executive Order 12866

This rule was not subject to Office of Management and Budget review

under Executive Order 12866, dated September 30, 1993. This rule is not

a major rule under 5 U.S.C. 804.

III. 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 this rule does not impose economic burdens on contractors. The

purpose and effect of this rule is to provide an exception to the

Balance of Payments Program for commercial information technology to be

used in overseas construction projects.

IV. Paperwork Reduction Act

The Paperwork Reduction Act (Pub. L. 104-13) does not apply because

the proposed rule contains no information collection requirements.

List of Subjects in 48 CFR Part 252

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

0

Therefore, 48 CFR part 252 is amended as follows:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0

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.

0

2. Section 252.225-7044 is amended by revising the clause date,

revising paragraph (b)(1), redesignating paragraph (b)(2) as paragraph

(b)(3), and adding new paragraph (b)(2) to read as follows:

252.225-7044 Balance of Payments Program--Construction Material.

* * * * *

BALANCE OF PAYMENTS PROGRAM--CONSTRUCTION MATERIAL (OCT 2010)

* * * * *

(b) * * *

(1) Construction material valued at or below the simplified

acquisition threshold in part 2 of the Federal Acquisition

Regulation;

(2) Information technology that is a commercial item; or

* * * * *

0

3. Section 252.225-7045 is amended by:

0

a. Revising the clause date, revising paragraph (c)(1), redesignating

paragraph (c)(2) as paragraph (c)(3), and adding new paragraph (c)(2);

and

0

b. In Alternate I, by revising the clause date, revising paragraph

(c)(1), redesignating paragraph (c)(2) as paragraph (c)(3), and adding

new paragraph (c)(2).

The revisions and additions read as follows:

252.225-7045 Balance of Payments Program--Construction Material Under

Trade Agreements.

* * * * *

BALANCE OF PAYMENTS PROGRAM--CONSTRUCTION MATERIAL UNDER TRADE

AGREEMENTS (OCT 2010)

* * * * *

(c) * * *

(1) Construction material valued at or below the simplified

acquisition threshold in part 2 of the Federal Acquisition

Regulation;

(2) Information technology that is a commercial item; or

* * * * *

ALTERNATE I (OCT 2010)

* * * * *

(c) * * *

(1) Construction material valued at or below the simplified

acquisition threshold in part 2 of the Federal Acquisition

Regulation;

(2) Information technology that is a commercial item; or

* * * * *

[FR Doc. 2010-27304 Filed 10-28-10; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register: October 29, 2010 (Volume 75, Number 209)]

[Rules and Regulations]

[Page 66679-66680]

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

[DOCID:fr29oc10-12]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 209

Defense Federal Acquisition Regulation Supplement; Continuation

of Current Contracts--Deletion of Redundant Text (DFARS Case 2010-D016)

AGENCY: Defense Acquisition Regulations System, Department of Defense

(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal

Acquisition Regulation Supplement (DFARS) to delete redundant text

relating to the continuation of current contracts with a contractor

that has been suspended, debarred, or proposed for debarment.

DATES: Effective date: October 29, 2010.

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

Regulations System, OUSD (AT&L) DPAP/DARS, 3060 Defense Pentagon, Room

3B855, Washington, DC 20301-3060. Telephone 703-602-0328; facsimile

703-602-0350. Please cite DFARS Case 2010-D016.

SUPPLEMENTARY INFORMATION:

[[Page 66680]]

I. Background

DFARS 209.405-1 limits placement of orders against contracts with

contractors that have been debarred, suspended, or proposed for

debarment. On December 11, 2003, the final rule published under FAR

Case 2002-010 (68 FR 69250) incorporated these restrictions into the

FAR. The DFARS text, therefore, became redundant and is deleted by this

final rule.

II. Executive Order 12866

This is not a significant regulatory action and, therefore, was not

subject to Office of Management and Budget review under section 6(b) of

Executive Order 12866, dated September 30, 1993. This rule is not a

major rule under 5 U.S.C. 804.

III. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to this rule. This

final rule does not constitute a significant DFARS revision within the

meaning of 41 U.S.C. 418b and FAR 1.501, and publication for public

comment is not required. However, DoD will consider comments from small

entities concerning the affected DFARS parts in accordance with 5

U.S.C. 610. Interested parties must submit such comments separately and

should cite 5 U.S.C. 601, et seq., in correspondence.

IV. Paperwork Reduction Act

This rule does not impose any new 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 209

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

0

Therefore, 48 CFR part 209 is amended as follows:

PART 209--CONTRACTOR QUALIFICATIONS

0

1. The authority citation for 48 CFR part 209 continues to read as

follows:

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

209.405-1 [Removed]

0

2. Remove section 209.405-1.

[FR Doc. 2010-27306 Filed 10-28-10; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register: October 29, 2010 (Volume 75, Number 209)]

[Rules and Regulations]

[Page 66680-66683]

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[DOCID:fr29oc10-14]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 237 and 252

RIN 0750-AG52

Defense Federal Acquisition Regulation Supplement (DFARS);

Continuation of Essential Contractor Services (DFARS Case 2009-D017)

AGENCY: Defense Acquisition Regulations System, Department of Defense

(DoD).

ACTION: Final rule.

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SUMMARY: DoD is adopting as final, with changes, the interim rule

amending the Defense Federal Acquisition Regulation Supplement (DFARS)

to add policy and a contract clause requiring that contractors

providing essential contractor services, as determined by the requiring

activity, shall be prepared to continue such services during periods of

crisis.

DATES: Effective date: October 29, 2010.

Applicability date: Contracting officers may, at their discretion,

include these changes in any existing contract with appropriate

consideration, in accordance with FAR 1.108(d)(3).

FOR FURTHER INFORMATION CONTACT: Mr. Julian E. Thrash, 703-602-0310.

SUPPLEMENTARY INFORMATION:

[[Page 66681]]

I. Background

DoD published an interim rule in the Federal Register at 75 FR

10191, on March 5, 2010, implementing the requirements of DoDI 3020.37,

Continuation of Essential DoD Contractor Services During Crises. DoD

Instruction (DoDI) 1100.22, Policy and Procedures for Determining

Workforce Mix, has since superseded DoDI 3020.37.

This rule is necessary to ensure that essential contractor services

are not interrupted. The current changing threat environment,

particularly under the additional challenges caused by such potential

crises as destructive weather, earthquakes, or pandemic disease, has

increased the need for continuity of operations capabilities and plans

that enable agencies to continue their essential functions during a

broad range of emergencies and crises.

DoD established this requirement for contractors to submit their

plans to ensure continuation of essential contractor services that

support mission-essential functions during a crisis situation. As a

general rule, the designation of services as essential contractor

services will not apply to an entire contract but will apply only to

those service function(s) that have been specifically identified as

essential contractor services by the functional commander or civilian

equivalent.

The public comment period for the DFARS interim rule closed May 4,

2010. Two respondents submitted comments to the interim rule. A

discussion of the comments and the changes made to the rule as a result

of those comments is provided below.

II. Analysis of Public Comments

A. Definitions

1. Definition of ``Functional Commander or Equivalent''

Comment. A respondent requested the term ``functional commander or

equivalent'' be defined. The respondent was concerned with how this

term would be interpreted in non-military offices that did not have a

``functional commander or equivalent.''

Response. The term ``functional commander or equivalent'' has been

revised. The term appropriate ``functional commander or civilian

equivalent'' clarifies the meaning of the phrase ``or equivalent.''

This revised identifier, ``civilian equivalent,'' was added to the

definitions of ``essential contractor services,'' and ``mission-

essential functions.'' Additionally, conforming changes to DFARS

237.7602(a), and 237.7602(b) were made for this revised term.

2. Definition of a `` Crisis''

Comment. A respondent requested a definition for a ``crisis'' be

added to the text.

Response. A crisis situation is dynamic, with the body of knowledge

growing hour-by-hour from the latest situational reports. As such, it

does not lend itself to a precise definition. The contractor will be

notified to activate plans for a crisis by the contracting officer, who

does so at the directions of the appropriate functional commander or

civilian equivalent.

B. The Contracting Officer's Role

Comment. A respondent was concerned that DFARS 237.7602, Policy,

did not clearly lay out the role of a contracting officer in the

process of requiring a contractor to submit a plan. The concern was

that direction to the contractor should come from the contracting

officer, not the requiring activity.

Response. DFARS 237.7602, Policy, has been revised at paragraphs

(a) and (b) to clarify that it is the role of the contracting officer,

not the requiring activity, to provide direction to the contractor.

C. Written Plan

1. Status of the Plan

Comment. A respondent expressed concern regarding DFARS

237.7602(b), whether the contractor should ``have a plan'' or ``submit

a plan.''

Response. DFARS 237.7602(b) has been revised to require contractors

to ``provide a written plan'' for Government-determined essential

contractor services.

2. Materially Altered Plans

Comment. A respondent expressed concern that a contracting officer

needs to have the most current version of the contractor's plan. The

concern centered on the determination of whether a change would

``materially alter'' the plan.

Response. DFARS 252.237-7023(c)(2) has been revised to require the

contractor to provide all plan updates to the contracting officer for

approval.

3. Use of a Plan

Comment. A respondent expressed a number of concerns about the

evaluation of a contractor's written plan, and whether or not the plan

should be evaluated prior to contract award.

Response. In response to this concern, a provision has been created

at DFARS 252.237-7024, Notice of Continuation of Essential Contractor

Services, to require the submission of the plan as part of the

offeror's proposal. The associate provision prescription is added at

237.7603. The contractor's continuity of essential services plan shall

be considered and evaluated as part of the technical evaluation of

offers. The functional managers of the services should be consulted to

determine the sufficiency of these plans. The contractor's Mission-

Essential Contractor Services Plan, in the resultant contract, will

remain active in accordance with the clause at DFARS 252.237-7023,

Continuation of Essential Contractor Services.

D. Equitable Adjustment

Comment. A respondent stated that, if costs increase due to the

continuation of services during an event that would create an excusable

delay, contractors should be entitled to an equitable adjustment to the

terms of the contract. Furthermore, they were concerned that inclusion

of the clause in a contract could be construed as waiving the

contractor's right to an equitable adjustment to contract terms other

than schedule terms when providing its best efforts to maintain

continuity of operations during a crisis.

Response. DFARS 252.237-7023(f), Changes, provides the basis for

determining an equitable adjustment. In the interim rule, this

paragraph allowed for an equitable adjustment to contract price. In the

final rule, this paragraph has been revised to include that, in

addition to an adjustment in price, an equitable adjustment may be to

``delivery schedule, or both.''

E. Causes Beyond the Control of the Contractor

Comment. Two respondents requested the clause at DFARS 252.237-

7023(c) be clarified with regard to causes beyond the control of the

contractor.

Response. As a result of the necessity to ensure performance of a

mission-essential function, a new paragraph has been added at DFARS

252.237-7023(d)(1). This paragraph clarifies that, in those specific

instances where a contractor function is considered mission essential,

it is important for contract performance to continue notwithstanding

any other clause of the contract; and that the contractor shall be

responsible to perform those services identified as essential

contractor services during crisis situations (as directed by the

contracting officer), in accordance with its Mission-Essential

Contractor Services Plan. If in the course of contract performance, a

contractor feels it must apply for an equitable adjustment, it may

follow the

[[Page 66682]]

process required in DFARS 252.237-7023(f), Changes.

F. Other Changes

The definitions have been moved from 237.7601 to the

clause 252.237-7023(a).

DFARS 252.237-7023 has been renamed ``Continuation of

Essential Contractor Services'' instead of ``Continuation of Mission-

Essential Functions'' in order to use more precise terminology.

Redesignated DFARS 252.237-7023(e) adds ``military''

personnel to the list of options the Government reserves the right to

utilize in crisis situations. Additionally, reference to the Office of

Federal Procurement Policy letter dated May 2007, and FAR and DFARS

parts 18 and 218 were determined unnecessary and have been deleted from

that paragraph.

III. Executive Order 12866

This regulatory action was subject to review under Section 6(b) of

Executive Order 12866, Regulatory Planning and Review, dated September

30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

DoD certifies that this rule will not have a significant economic

impact upon a substantial number of small entities because it allows

for an equitable adjustment for additional costs that are incurred

during a crisis situation.

The interim rule published at 75 FR 10191, on March 5, 2010,

invited comments from small businesses and other interested parties. No

comments were received from small entities on the affected DFARS

subpart with regard to small businesses.

V. Paperwork Reduction Act

This final rule contains an information collection requirement. The

Office of Management and Budget (OMB) has approved the information

collection requirement for use through December 31, 2010, under OMB

Control Number 0704-0465, in accordance with the emergency processing

procedures of 5 CFR 1320.13.

The following is a summary of the information collection

requirement.

Title: Defense Federal Acquisition Regulation Supplement (DFARS)

2009-D017; Continuation of Essential Contractor Services.

Type of Request: New collection.

Number of Respondents: 7,600.

Responses per Respondents: 1.25.

Annual Responses: 9,500.

Average Burden per Response: 2.

Total Annual Burden Hours: 19,000.

Needs and Uses: DoD needs this information to ensure essential

contractor services are performed for continuity of operations.

Affected Public: Businesses or other for-profit institutions.

Frequency: On occasion.

Respondent's Obligation: Required to obtain contract.

The interim rule, published at 75 FR 10191, on March 5, 2010,

invited comments on the following aspects of the interim rule: (a)

Whether the collection of information is necessary for the proper

performance of the functions of DoD, including whether the information

will have practical utility; (b) the accuracy of the estimate of the

burden of the information collection; (c) ways to enhance the quality,

utility, and clarity of the information to be collected; and (d) ways

to minimize the burden of the information collection on respondents,

including the use of automated collection techniques or other forms of

information technology. No comments were received regarding this

information collection requirement.

To request more information on this information collection or to

obtain a copy of the information collection requirement and associated

collection instruments, please write to the Defense Acquisition

Regulations System (DARS), Attn: Mr. Julian Thrash,

OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC

20301-3060.

List of Subjects in 48 CFR Parts 237 and 252

Government procurement.

Clare M. Zebrowski,

Editor, Defense Acquisition Regulations System.

0

Therefore, the Defense Acquisition Regulations System confirms as final

the interim rule published at 75 FR 10191, March 5, 2010, with the

following changes:

0

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

0

2. Subpart 237.76 is revised to read as follows:

Subpart 237.76--Continuation of Essential Contractor Services

Sec.

237.7600 Scope.

237.7601 Definitions.

237.7602 Policy.

237.7603 Solicitation provision and contract clause.

Subpart 237.76--Continuation of Essential Contractor Services

237.7600 Scope.

This subpart prescribes procedures for the acquisition of essential

contractor services which support mission-essential functions.

237.7601 Definitions.

As used in this subpart, essential contractor service and mission-

essential functions are defined in the clause at 252.237-7023,

Continuation of Essential Contractor Services.

237.7602 Policy.

(a) Contractors providing services designated as essential

contractor services shall be prepared to continue providing such

services, in accordance with the terms and conditions of their

contracts, during periods of crisis. As a general rule, the designation

of services as essential contractor services will not apply to an

entire contract but will apply only to those service functions that

have been specifically identified as essential contractor services by

the functional commander or civilian equivalent.

(b) Contractors who provide Government-determined essential

contractor services shall provide a written plan to be incorporated in

the contract, to ensure the continuation of these services in crisis

situations. Contracting officers shall consult with a functional

manager to assess the sufficiency of the contractor-provided written

plan. Contractors will activate such plans only during periods of

crisis, as authorized by the contracting officer, who does so at the

direction of the appropriate functional commander or civilian

equivalent.

(c) The contracting officer shall follow the procedures at PGI

207.105U(b)(20)(C) in preparing an acquisition plan.

237.7603 Solicitation provision and contract clause.

(a) Use the clause at 252.237-7023, Continuation of Essential

Contractor Services in all solicitations and contracts for services

that are in support of mission-essential functions.

(b) Use the provision at 252.237-7024, Notice of Continuation of

Essential Contractor Services in all solicitations for services that

include the clause 252.237-7023.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0

3. Section 252.237-7023 is revised to read as follows:

[[Page 66683]]

252.237-7023 Continuation of Essential Contractor Services.

As prescribed in 237.7603(a), use the following clause:

CONTINUATION OF ESSENTIAL CONTRACTOR SERVICES (OCT 2010)

(a) Definitions. As used in this clause-

(1) Essential contractor service means a service provided by a

firm or individual under contract to DoD to support mission-

essential functions, such as support of vital systems, including

ships owned, leased, or operated in support of military missions or

roles at sea; associated support activities, including installation,

garrison, and base support services; and similar services provided

to foreign military sales customers under the Security Assistance

Program. Services are essential if the effectiveness of defense

systems or operations has the potential to be seriously impaired by

the interruption of these services, as determined by the appropriate

functional commander or civilian equivalent.

(2) Mission-essential functions means those organizational

activities that must be performed under all circumstances to achieve

DoD component missions or responsibilities, as determined by the

appropriate functional commander or civilian equivalent. Failure to

perform or sustain these functions would significantly affect DoD's

ability to provide vital services or exercise authority, direction,

and control.

(b) The Government has identified all or a portion of the

contractor services performed under this contract as essential

contractor services in support of mission-essential functions. These

services are listed in attachment --, Mission-Essential Contractor

Services, dated --------.

(c)(1) The Mission-Essential Contractor Services Plan submitted

by the Contractor, is incorporated in this contract.

(2) The Contractor shall maintain and update its plan as

necessary. The Contractor shall provide all plan updates to the

Contracting Officer for approval.

(3) As directed by the Contracting Officer, the Contractor shall

participate in training events, exercises, and drills associated

with Government efforts to test the effectiveness of continuity of

operations procedures and practices.

(d)(1) Notwithstanding any other clause of this contract, the

Contractor shall be responsible to perform those services identified

as essential contractor services during crisis situations (as

directed by the Contracting Officer), in accordance with its

Mission-Essential Contractor Services Plan.

(2) In the event the Contractor anticipates not being able to

perform any of the essential contractor services identified in

accordance with paragraph (b) of this clause during a crisis

situation, the Contractor shall notify the Contracting Officer or

other designated representative as expeditiously as possible and use

its best efforts to cooperate with the Government in the

Government's efforts to maintain the continuity of operations.

(e) The Government reserves the right in such crisis situations

to use Federal employees, military personnel, or contract support

from other contractors, or to enter into new contracts for essential

contractor services.

(f) Changes. The Contractor shall segregate and separately

identify all costs incurred in continuing performance of essential

services in a crisis situation. The Contractor shall notify the

Contracting Officer of an increase or decrease in costs within

ninety days after continued performance has been directed by the

Contracting Officer, or within any additional period that the

Contracting Officer approves in writing, but not later than the date

of final payment under the contract. The Contractor's notice shall

include the Contractor's proposal for an equitable adjustment and

any data supporting the increase or decrease in the form prescribed

by the Contracting Officer. The parties shall negotiate an equitable

price adjustment to the contract price, delivery schedule, or both

as soon as is practicable after receipt of the Contractor's

proposal.

(g) The Contractor shall include the substance of this clause,

including this paragraph (g), in subcontracts for the essential

services.

(End of clause)

0

4. Section 252.237-7024 is added to read as follows:

252.237-7024 Notice of Continuation of Essential Contractor Services.

As prescribed in 237.7603(b), use the following provision:

NOTICE OF CONTINUATION OF ESSENTIAL CONTRACTOR SERVICES [OCT 2010]

(a) Definitions. Essential contractor service and mission-

essential functions have the meanings given in the clause at

252.237-7023, Continuation of Essential Contractor Services, in this

solicitation.

(b) The offeror shall provide with its offer a written plan

describing how it will continue to perform the essential contractor

services listed in attachment --, Mission Essential Contractor

Services, dated --------, during periods of crisis. The offeror

shall--

(1) Identify provisions made for the acquisition of essential

personnel and resources, if necessary, for continuity of operations

for up to 30 days or until normal operations can be resumed;

(2) Address in the plan, at a minimum--

(i) Challenges associated with maintaining essential contractor

services during an extended event, such as a pandemic that occurs in

repeated waves;

(ii) The time lapse associated with the initiation of the

acquisition of essential personnel and resources and their actual

availability on site;

(iii) The components, processes, and requirements for the

identification, training, and preparedness of personnel who are

capable of relocating to alternate facilities or performing work

from home;

(iv) Any established alert and notification procedures for

mobilizing identified ``essential contractor service'' personnel;

and

(v) The approach for communicating expectations to contractor

employees regarding their roles and responsibilities during a

crisis.

(End of provision)

[FR Doc. 2010-27302 Filed 10-28-10; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register: October 29, 2010 (Volume 75, Number 209)]

[Rules and Regulations]

[Page 66683-66686]

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

[DOCID:fr29oc10-15]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 246 and 252

RIN 0750-AG73

Defense Federal Acquisition Regulation Supplement; Safety of

Facilities, Infrastructure, and Equipment for Military Operations

(DFARS Case 2009-D029)

AGENCY: Defense Acquisition Regulations System, Department of Defense

(DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule amending the Defense Federal

Acquisition Regulation Supplement (DFARS) to implement section 807 of

the National Defense Authorization Act of 2010. Section 807 requires

that facilities, infrastructure, and equipment that are intended for

use by military or civilian personnel of the Department of Defense

(DoD), in current or future military operations, should be inspected

for safety and habitability prior to use, and that such facilities

should be brought into compliance with generally accepted standards for

the safety and health of personnel to the maximum extent practicable

consistent with the requirements of military operations and the best

interests of DoD to minimize the safety and health risk posed to such

personnel.

DATES: Effective date: October 29, 2010.

Comment date: Comments on the interim rule should be submitted in

writing to the address shown below on or before December 28, 2010, to

be considered in the formation of the final rule.

ADDRESSES: Submit comments, identified by DFARS Case 2008-D029, using

any of the following methods:

Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting

``DFARS Case 2009-D029'' under the heading ``Enter keyword or ID'' and

selecting ``Search.'' Select the link ``Submit a Comment'' that

corresponds with ``DFARS Case 2009-D029.'' Follow the instructions

provided at the ``Submit

[[Page 66684]]

a Comment'' screen. Please include your name, company name (if any),

and ``DFARS Case 2009-D029'' on your attached document.

E-mail: dfars@osd.mil. Include DFARS Case 2008-D029 in the subject

line of the message.

Fax: 703-602-0350.

Mail: Defense Acquisition Regulations System, Attn: Ms. Mary

Overstreet, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense Pentagon,

Washington, DC 20301-3060.

Comments received generally will be posted without change to http:/

/www.regulations.gov, including any personal information provided.

To confirm receipt of your comment(s), please check http://

www.regulations.gov approximately two to three days after submission to

verify posting (except allow 30 days for posting of comments submitted

by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Mary Overstreet, 703-602-0311.

SUPPLEMENTARY INFORMATION:

I. Background

This interim rule implements section 807 of the National Defense

Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), which was

signed on October 28, 2009. Section 807 requires that--

Each contract, including task or delivery orders, entered

into for the construction, installation, repair, maintenance, or

operation of facilities, infrastructure, and equipment for use by DoD

military or civilian should be inspected for safety and habitability

prior to use to minimize the safety and health risk posed to such

personnel;

The term ``generally accepted standards'' shall be defined

with respect to fire protection, structural integrity, electrical

systems, plumbing, water treatment, waste disposal, and

telecommunications networks for the purposes of this section; and

Exceptions and limitations shall be provided as may be

needed to ensure that this section can be implemented in a manner that

is consistent with the requirements of military operations and the best

interests of the Department of Defense.

DoD amended DFARS subpart 246.2, Contract Quality Requirements, to

add section 246.270, Safety of Facilities, Infrastructure, and

Equipment for Military Operations. Part 252 is amended to include a new

contract clause, 252.246-7004, Safety of Facilities, Infrastructure,

and Equipment for Military Operations.

DFARS 246.270-1 provides for the scope to be limited to current or

future military operations performed outside the United States, Guam,

Puerto Rico, and the Virgin Islands.

DFARS 246.270-2 provides for the rule to apply to each contract,

including task and delivery orders, for construction, installation,

repair, maintenance, or operation of facilities. This includes

contracts for facilities, infrastructure, and equipment configured for

occupancy, including but not limited to, existing host nation

facilities, new construction, and relocatable buildings. Contracts will

require compliance with the Unified Facilities Criteria (UFC) 1-200-01

and its referenced standards to meet generally accepted standards for

fire protection, structural integrity, electrical systems, plumbing,

water treatment, waste disposal, and telecommunications networks.

Facilities, infrastructure, and equipment shall be inspected prior to

use for compliance with UFC 1-200-01 to ensure safety and habitability.

DFARS 246.270-3 allows the combatant commander to waive compliance

with any standards when compliance is impracticable under prevailing

operational conditions.

The new contract clause 252.246-7004, Safety of Facilities,

Infrastructure, and Equipment for Military Operations, provides for use

of the UFC 1-200-01 standards. The clause also provides for use of

facilities that are constructed to standards equivalent to or more

stringent than the UFC 1-200-01 standards based upon a written

determination by the Contracting Officer with the concurrence of the

relevant Discipline Working Group. The Discipline Working Group is

defined in the clause. Section 807 is applicable to contracts for the

acquisition of commercial items. Subpart 252.2, Text of Provisions and

Clauses, is amended to add 252.246.7004, Safety of Facilities,

Infrastructure, and Equipment for Military Operations, to 252.212-7001,

Contract Terms and Conditions Required to Implement Statutes or

Executive Orders Applicable to Defense Acquisition of Commercial Items,

subparagraph (b)(22).

Contracting officers are encouraged to include this rule in

solicitations issued before the effective date, provided award occurs

after the effective date. Contracting officers are also encouraged to

apply this rule to the maximum extent practicable to existing

contracts, consistent with FAR 1.108(d).

II. Executive Order 12866

This rule is a significant regulatory action and, therefore, was

subject to review under section 6(b) of Executive Order 12866,

Regulatory Planning and Review, dated September 30, 1993. This rule is

not a major rule under 5 U.S.C. 804.

III. Regulatory Flexibility Act

DoD has prepared an initial regulatory flexibility analysis

consistent with 5 U.S.C. 603. A copy of the analysis may be obtained

from the point of contact specified herein. The analysis is summarized

as follows:

The rule affects contractors with contracts, including task and

delivery orders, in support of current and future military operations

for construction, installation, repair, maintenance, or operation of

facilities. This includes contracts for facilities, infrastructure, and

equipment configured for occupancy, including but not limited to,

existing host nation facilities, new construction, and relocatable

buildings.

Contracts will require compliance with the Unified Facilities

Criteria (UFC) 1-200-01 to meet generally accepted standards for fire

protection, structural integrity, electrical systems, plumbing, water

treatment, waste disposal, and telecommunications networks. Facilities,

infrastructure, and equipment shall be inspected prior to use to ensure

safety and habitability.

Military operations affected by this rule are those outside the

United States, Guam, Puerto Rico, and the Virgin Islands.

Contract support for recent military operations has been provided

primarily by the Department of Army's LOGCAP contracts, which were

awarded to large businesses. There are high costs associated with a

company being able to perform in the geographic regions where most

military operations are currently taking place. This makes it unlikely

that a small business could afford to sustain the infrastructure

required to perform these types of services in locations such as Iraq

and Afghanistan. Small business preferential programs under FAR part 19

may not apply to these contracts as they only apply to contracts placed

in the United States or its outlying areas. At this time, DoD is unable

to estimate the number of small entities to which this rule will apply.

However, based on the above factors, the number of small business firms

to which the rule would apply is expected to be minimal.

DoD invites comments from small businesses and other interested

parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the

existing regulations in subparts affected by this rule in accordance

with 5 U.S.C. 610. Interested parties must submit comments separately

and should cite 5

[[Page 66685]]

U.S.C. 610 (DFARS Case 2009-D029) in correspondence.

IV. Paperwork Reduction Act

The Paperwork Reduction Act (Pub. L. 96-511) does not apply because

the rule does not impose additional information collection requirements

that require the approval of the Office of Management and Budget under

44 U.S.C. 3501, et seq.

V. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary

of Defense (DoD) that urgent and compelling circumstances exist to

promulgate this interim rule without prior opportunity for public

comments. This action is necessary because section 807 of the National

Defense Authorization Act for Fiscal Year 2010 became effective 60 days

after enactment, October 28, 2009.

Section 807 requires that facilities, infrastructure, and equipment

that are intended for use by military or civilian personnel of the

Department of Defense (DoD), in current or future military operations,

should be inspected for safety and habitability prior to use and that

such facilities should be brought into compliance with generally

accepted standards for the safety and health of personnel to the

maximum extent practicable consistent with the requirements of military

operations. Implementing language must be published as quickly as

possible to minimize the safety and health risk posed to DoD military

or civilian personnel during military operations.

However, pursuant to 41 U.S.C. 418b and FAR 1.501-3, DoD will

consider public comments received in response to this interim rule in

the formation of the final rule.

List of Subjects in 48 CFR Parts 246 and 252

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

0

Therefore, 48 CFR parts 246 and 252 are amended as follows:

0

1. The authority citation for 48 CFR parts 246 and 252 continues to

read as follows:

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

PART 246--QUALITY ASSURANCE

0

2. Section 246.101 is added to read as follows:

246.101 Definitions.

Discipline Working Group, as used in this subpart, is defined in

the clause at 252.246-7004, Safety of Facilities, Infrastructure, and

Equipment for Military Operations.

0

3. Section 246.270 is added to read as follows:

246.270 Safety of facilities, infrastructure, and equipment for

military operations.

246.270-1 Scope.

This section implements section 807 of the National Defense

Authorization Act for Fiscal Year 2010 (Pub. L. 111-84). It establishes

policies and procedures intended to ensure the safety and habitability

of facilities, infrastructure, and equipment acquired for use by DoD

military or civilian personnel during military operations performed

outside the United States, Guam, Puerto Rico, and the Virgin Islands.

246.270-2 Policy.

(a) Contracts (including task and delivery orders) for the

construction, installation, repair, maintenance, or operation of

facilities, infrastructure, and equipment configured for occupancy,

including but not limited to, existing host nation facilities, new

construction, and relocatable buildings acquired for use by DoD

military or civilian personnel, shall require a pre-occupancy safety

and habitability inspection.

(b) To minimize safety and health risks, each contract covered by

this policy shall require the contractor's compliance with the Unified

Facilities Criteria (UFC) 1-200-01 and its referenced standards for--

(1) Fire protection;

(2) Structural integrity;

(3) Electrical systems;

(4) Plumbing;

(5) Water treatment;

(6) Waste disposal; and

(7) Telecommunications networks.

(c) Existing host nation facilities constructed to standards

equivalent to or more stringent than UFC 1-200-01 are acceptable upon a

written determination of the acceptability of the standards by the

Discipline Working Group.

(d) Inspections to ensure compliance with UFC 1-200-01 standards

shall be conducted in accordance with the inspection clause of the

contract.

246.270-3 Exceptions.

The combatant commander may waive compliance with the foregoing

standards when it is impracticable to comply with such standards under

prevailing operational conditions.

246.270-4 Contract clause.

Use the clause at 252.246-7004, Safety of Facilities,

Infrastructure, and Equipment for Military Operations, in solicitations

and contracts for the construction, installation, repair, maintenance,

or operation of facilities, infrastructure, or for equipment configured

for occupancy, planned for use by DoD military or civilian personnel

during military operations.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0

4. Section 252.212-7001 is amended as follows:

0

a. Redesignate paragraphs (b)(22), (b)(23), and (b)(24) as paragraphs

(b)(23), (b)(24), and (b)(25), respectively;

0

b. Add new paragraph (b)(22) to read as follows:

252.212-7001 Contract Terms and Conditions Required To Implement

Statutes or Executive Orders Applicable to Defense Acquisitions of

Commercial Items.

* * * * *

(b) * * *

(22)------ 252.246-7004, Safety of Facilities, Infrastructure, and

Equipment for Military Operations (OCT 2010) (Section 807 of Public Law

111-84).

* * * * *

0

5. Section 252.246-7004 is added to read as follows:

252.246-7004 Safety of Facilities, Infrastructure, and Equipment for

Military Operations.

As prescribed in 246.270-4, use the following clause:

SAFETY OF FACILITIES, INFRASTRUCTURE, AND EQUIPMENT FOR MILITARY

OPERATIONS (OCT 2010)

(a) Definition. Discipline Working Group, as used in this

clause, means representatives from the DoD Components, as defined in

MIL-STD-3007F, who are responsible for the unification and

maintenance of the Unified Facilities Criteria (UFC) documents for a

particular discipline area.

(b) The Contractor shall ensure, consistent with the

requirements of the applicable inspection clause in this contract,

that the facilities, infrastructure, and equipment acquired,

constructed, installed, repaired, maintained, or operated under this

contract comply with Unified Facilities Criteria (UFC) 1-200-01

for--

(1) Fire protection;

(2) Structural integrity;

(3) Electrical systems;

(4) Plumbing;

(5) Water treatment;

(6) Waste disposal; and

(7) Telecommunications networks.

(c) The Contractor may apply a standard equivalent to or more

stringent than UFC 1-

[[Page 66686]]

200-01 upon a written determination of the acceptability of the

standard by the Contracting Officer with the concurrence of the

relevant Discipline Working Group.

(End of clause)

[FR Doc. 2010-27305 Filed 10-28-10; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register: October 29, 2010 (Volume 75, Number 209)]

[Rules and Regulations]

[Page 66680]

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

[DOCID:fr29oc10-13]

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DEPARTMENT OF DEFENSE

Defense Acquisitions Regulations System

48 CFR Part 225

RIN 0750-AG59

Defense Federal Acquisition Regulation Supplement; Trade

Agreements--New Thresholds (DFARS 2009-D040)

AGENCY: Defense Acquisition Regulations System, Department of Defense

(DoD).

ACTION: Final rule.

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

SUMMARY: DoD is adopting as final, without change, the interim rule

that amended the Defense Federal Acquisition Regulation Supplement

(DFARS) to incorporate increased thresholds for application of the

World Trade Organization Government Procurement Agreement and the Free

Trade Agreements, as determined by the United States Trade

Representative.

DATES: Effective Date: October 29, 2010.

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

SUPPLEMENTARY INFORMATION:

I. Background

DoD published an interim rule in the Federal Register on June 8,

2010 (75 FR 32637) to amend the clause prescriptions at DFARS 225.1101

and 225.7503 to reflect increased thresholds for application of the

trade agreements. The comment period closed on August 9, 2010. DoD

received no comments on the interim rule. DoD has therefore adopted the

interim rule as a final rule without change.

II. Executive Order 12866

This rule was not subject to Office of Management and Budget review

under Executive Order 12866, Regulatory Planning and Review, dated

September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

III. 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 this rule does not impose economic burdens on contractors. The

purpose and effect of this rule is to adjust the dollar threshold

changes to keep pace with inflation and thus maintain the status quo.

IV. Paperwork Reduction Act

This final rule affects the certification and information

collection requirements in the provisions at DFARS 252.225-7020 and

252.225-7035, currently approved under Office of Management and Budget

Control Number 0704-0229. However, there is no impact on the estimated

burden hours. The dollar threshold changes are in line with inflation

and maintain the status quo.

List of Subjects in 48 CFR Part 225

Government procurement.

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Interim Rule Adopted as Final Without Change

0

Accordingly, the interim rule amending 48 CFR part 225 published at 75

FR 32637 on June 8, 2010, is adopted as final without change.

[FR Doc. 2010-27303 Filed 10-28-10; 8:45 am]

BILLING CODE 5001-08-P