[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23947]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204 and 252

RIN 0750-AG39

Defense Federal Acquisition Regulation Supplement; Annual Representations and Certifications (DFARS Case 2009-D011)

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

ACTION: Final rule.

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to conform it to higher-level changes in the Code of Federal Regulation relating to annual representations and certifications.

DATES: Effective date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT:

Mr. Julian Thrash, 703-602-0310.

SUPPLEMENTARY INFORMATION:

I. Background

DFARS 204.1202 prescribes use of DFARS provision 252.204-7007, Alternate A, Annual Representations and Certifications, in contracts that also incorporate Federal Acquisition Regulation (FAR) provision 52.204-8, Annual Representations and Certifications. FAR 52.204-8 was changed to add a new paragraph (c), which lists the applicable representations and certifications in the Online Representations and Certifications Application (ORCA). This FAR change necessitated a similar modification of DFARS 252.204-7007.

DoD published a proposed rule in the Federal Register at 75 FR 71646, on November 24, 2010, to update DFARS 204.1202 and 252.204-7007. The public comment period closed January 24, 2011. Two respondents submitted comments on the proposed rule. A discussion of the comments is provided below.

II. Discussion and Analysis

A. Applicability

Comment: A respondent recommended DFARS 252.212-7000, Offeror Representations and Certifications--Commercial Items, be retained in the list of representations and certification at 204.1202(2) that are not to be included in the solicitation when using the provision DFARS 252.204-7007, because that provision is to be used in non-commercial solicitations only. Another respondent recommended that DFARS 204.1202(2) include provisions that are applicable to solicitations, rather than those not applicable, similar to FAR 52.204-8.

Response: The first respondent is correct that DFARS provision 252.212-7000 is for commercial solicitations only and will not be included in solicitations that include DFARS 252.204-7007, because that provision is used when FAR 52.204-8 is included, and that FAR provision is not used in solicitations issued under FAR part 12 for acquisition of commercial items. However, inclusion of DFARS 252.212-7000 on the list at DFARS 204.1202(2) is not appropriate, because the list at DFARS 204.1202(2) should include only provisions that are listed in 252.204-7007, Alternate A, Annual Representations and Certifications. Therefore, the final rule does not retain 252.212-7000 on the list at 204.1202(2). Further, DFARS 204.1202(2) introductory text was amended to clarify that the listed provisions will not be included separately in the solicitation, because the appropriate representations and certifications will be covered by inclusion of DFARS 252.204-7007 in the solicitation.

Comment: A respondent recommended the representations at DFARS 252.216-7003 and DFARS 252.239-7011 be retained in the list of representations and certifications at DFARS 252.204-7007 because the Contractor is asked to make a representation about itself.

Response: DFARS 252.216-7003 will be retained in the list. DFARS 252.239-7011, however, will not be included because the clause requires contractors to make certain representations during contract performance concerning reimbursement of special construction and equipment costs. According to DFARS 239.7408-1(a), ``special construction normally involves a common carrier giving a special service or facility related to the performance of the basic telecommunications service requirements.'' Since these are costs that occur during contract performance, the contractor would not be able to make a proper representation prior to award.

B. Clarification

Comment: A respondent recommended modifying the second sentence of DFARS 252.204.7007(e) by removing ``as indicated in (d) and (e) of this provision'' and adding ``as well as those in (d) above'' after ``posted electronically.''

Response: When using the alternate at DFARS 252.204-7007, paragraphs (d) and (e) replace paragraph (d) of FAR 52.204-8. DFARS 252.204-7007(e) provides that by submission of an offer, the offeror verifies that the FAR 52.204-8(c) representations and certifications and the DFARS 252.204-7007(d) representations and certifications are up to date in ORCA. Accordingly, the language in paragraph (e) was changed to include the statement ``as indicated in FAR 52.204-8(c) and paragraph (d) of this provision.''

Comment: A respondent commented that the second to last line of 252.204-7007(e) should say ``provision number'' instead of ``clause number.''

Response: The term ``clause number'' was changed to ``provision number'' in the second to last line of 252.204-7007(e) and in the first block of the table provided.

C. Additional Changes

DFARS 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country, which was inadvertently omitted from the listing of provisions, has been added to 204.1202(2)(i) and 252.204-7007(d)(1)(i). The Alternates for 252.225-7020, Trade Agreements Certificate, and 252.225-7035, Buy American Act-Free Trade Agreements-Balance of Payments Program Certificate, were added to 252.204-7007(d)(2)(iii), and (vi), respectively.

Additionally, to further clarify applicability of the various provisions, 252.204-7007(d) was reformatted into two sections to separately list the DFARS provisions that the contracting officer may individually select if one of the provisions applies for a particular procurement. Additionally, the prescription for use of 252.204-7007 was reformatted to include it as a lead in to the provision rather than being a part of the provision.

III. Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not 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 final rule will not have a significant economic impact on a substantial number of small entities within the meaning for the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not impose any additional requirements on small businesses.

A proposed rule published in the Federal Register at 75 FR 73997, on November 30, 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

The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 204 and 252

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

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

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

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 204--ADMINISTRATIVE MATTERS

2. Section 204.1202 is revised to read as follows:

204.1202 Solicitation provision.

When using the provision at FAR 52.204-8, Annual Representations and Certifications--

(1) Use the provision with 252.204-7007, Alternate A, Annual Representations and Certifications; and

(2) Do not include separately in the solicitation the following provisions, which are included in DFARS 252.204-7007:

(i) 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country.

(ii) 252.209-7005, Reserve Officer Training Corps and Military Recruiting on Campus.

(iii) 252.209-7002, Disclosure of Ownership or Control by a Foreign Government.

(iv) 252.216-7003, Economic Price Adjustment--Wage Rates or Material Prices Controlled by a Foreign Government.

(v) 252.225-7000, Buy American Act--Balance of Payments Program Certificate.

(vi) 252.225-7020, Trade Agreements Certificate.

(vii) 252.225-7022, Trade Agreements Certificate--Inclusion of Iraqi End Products.

(viii) 252.225-7031, Secondary Arab Boycott of Israel.

(ix) 252.225-7035, Buy American Act--Free Trade Agreements--Balance of Payments Program Certificate.

(x) 252.225-7042, Authorization to Perform.

(xi) 252.229-7003, Tax Exemptions (Italy).

(xii) 252.229-7005, Tax Exemptions (Spain).

(xiii) 252.247-7022, Representation of Extent of Transportation by Sea.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Section 252.204-7007 is revised to read as follows:

252.204-7007 Alternate A, Annual Representations and Certifications.

As prescribed in 204.1202, use the following provision:

Alternate A, Annual Representations and Certifications (Sep 2011)

Substitute the following paragraphs (d) and (e) for paragraph (d) of the provision at FAR 52.204-8:

(d)(1) The following representations or certifications in ORCA are applicable to this solicitation as indicated:

(i) 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country. Applies to all solicitations expected to result in contracts of $150,000 or more.

(ii) 252.209-7005, Reserve Officer Training Corps and Military Recruiting on Campus. Applies to all solicitations and contracts with institutions of higher education.

(iii) 252.216-7003, Economic Price Adjustment-Wage Rates or Material Prices Controlled by a Foreign Government. Applies to fixed-price supply and service contracts when the contract is to be performed wholly or in part in a foreign country, and a foreign government controls wage rates or material prices and may during contract performance impose a mandatory change in wages or prices of materials.

(iv) 252.225-7042, Authorization to Perform. Applies to all solicitations when performance will be wholly or in part in a foreign country.

(v) 252.229-7003, Tax Exemptions (Italy). Applies to solicitations and contracts when contract performance will be in Italy.

(vi) 252.229-7005, Tax Exemptions (Spain). Applies to solicitations and contracts when contract performance will be in Spain.

(vii) 252.247-7022, Representation of Extent of Transportation by Sea. Applies to all solicitations except those for direct purchase of ocean transportation services or those with an anticipated value at or below the simplified acquisition threshold.

(2) The following representations or certifications in ORCA are applicable to this solicitation as indicated by the Contracting Officer: [Contracting Officer check as appropriate.]

----(i) 252.209-7002, Disclosure of Ownership or Control by a Foreign Government.

----(ii) 252.225-7000, Buy American Act--Balance of Payments Program Certificate.

----(iii) 252.225-7020, Trade Agreements Certificate.

----Use with Alternate I.

----(iv) 252.225-7022, Trade Agreements Certificate--Inclusion of Iraqi End Products.

----(v) 252.225-7031, Secondary Arab Boycott of Israel.

----(vi) 252.225-7035, Buy American Act--Free Trade Agreements—Balance of Payments Program Certificate.

----Use with Alternate I.

----Use with Alternate II.

----Use with Alternate III.

(e) The offeror has completed the annual representations and certifications electronically via the Online Representations and Certifications Application (ORCA) Web site at https://orca.bpn.gov/. After reviewing the ORCA database information, the offeror verifies by submission of the offer that the representations and certifications currently posted electronically that apply to this solicitation as indicated in FAR 52.204-8(c) and paragraph (d) of this provision have been entered or updated within the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard applicable to the NAICS code referenced for this solicitation), as of the date of this offer, and are incorporated in this offer by reference (see FAR 4.1201); except for the changes identified below [offeror to insert changes, identifying change by provision number, title, date]. These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer.

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FAR/DFARS

provision No. Title Date Change

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

Any changes provided by the offeror are applicable to this solicitation only, and do not result in an update to the representations and certifications posted on ORCA.(End of provision)

[FR Doc. 2011-23947 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23958]

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Chapter 2

Defense Federal Acquisition Regulation Supplement; Material Inspection and Receiving Report (DFARS Case 2009–D023)

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

ACTION: Final rule.

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS), Appendix F, Material Inspection and Receiving Report, to incorporate new procedures for using the electronic Wide Area WorkFlow (WAWF) Receiving Report.

DATES: Effective date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Julian Thrash, telephone 703–602–0310.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register (75 FR 56961) on September 17, 2010, to amend DFARS Appendix F, Material Inspection and Receiving Report, to provide new coverage on the use, preparation, and distribution of the electronic WAWF receiving report, which is the primary method for documenting acceptance of supplies and services and for electronic invoicing. The rule also addressed WAWF capability to provide the following:

Item Unique Identification (IUID). When the clause at DFARS 252.211– 7003, Item Identification and Valuation, is used in the contract and requires reporting of IUID data, WAWF captures the IUID data and forwards the data to the IUID registry after acceptance. WAWF may be used to report Unique Item Identifiers (UIIs) at the line item level and also UIIs embedded at the line item level.

Radio Frequency Identification (RFID). When the clause at DFARS 252.211–7006, Radio Frequency Identification, is used in the contract, WAWF will capture the RFID information and forward the data to the receiving location.

Using WAWF is the only way a contractor can comply with the clause to furnish RFID data via an Advance Shipping Notice. Insertion of the new WAWF coverage into Appendix F necessitates relocating and renumbering existing coverage for use, preparation, and distribution of the DD Form 250 Material Inspection and Receiving Report, and the DD Form 250–1 Tanker/ Barge Material Inspection and Receiving Report.

II. Discussion and Analysis

In response to the proposed rule, DoD received comments from five respondents. A discussion of the comments follows.

A. Revise F–103, WAWF RR and DD Form 250

Comment: Two respondents suggested changing the text at F–103(b)(2) for the transfer of Government property using the property transfer function. Another respondent recommended adding where training for the preparation of document types is available.

Response: These recommendations are incorporated into the final rule.

B. Limitation on the Quantity of Embedded Items in WAWF

Comment: A respondent asked if there was a limit on the quantity of embedded items at the line item level that may be reported in WAWF.

Response: A quantity limit of 100 embedded items currently exists in the software capability, however, this limit is subject to change in future versions of WAWF.

C. F–103(e)(2), Radio Frequency Identification (RFID)

Comment: A respondent suggested adding clarification on the use of RFID information.

Response: As suggested, paragraph F–103(e)(2) is revised to clarify that the RFID information can be added either at submission or via the ‘‘WAWF Pack Later’’ functionality.

D. F–104, Application

Comment: A respondent asked about the meaning of ‘‘consigned to’’ at F– 104(a)(4) and for clarification regarding use of a continuation sheet. The respondent stated that they have no control over how the continuation sheet appears or prints from WAWF.

Response: The phrase ‘‘consigned to’’ is the one to whom a line item is given, transferred, or delivered for control. In regard to use of a continuation sheet, the format printed out from WAWF will suffice as long as the required contractor information is entered.

E. F–301, Preparation Instructions— General Comments

Comment: Two respondents suggested, at paragraph F–301(a)(1), replacing ‘‘contractor’’ with ‘‘vendor’’ to be consistent with the label used on the training Web site provided in the proposed rule. A respondent suggested:

(1) Revising F–301(a)(2) to reflect the creation of an extension to the prime Commercial and Government Entity (CAGE); (2) replacing, at paragraph F– 301(a)(4), ‘‘official DoD sites’’ with ‘‘DoD definitive sources’’; (3). adding text at paragraph F–301(b)(1)(iii) to clarify that comments in the miscellaneous information tab will appear in the comments section of the printed WAWF receiving report; (4). changing, at paragraph F–301(b)(1)(iv), ‘‘DoD contract number’’ to ‘‘DoD contract number and delivery order number’’; and, (5) updating paragraph F–301(b)(3) to correctly refer to the data field as ‘‘Estimated’’ and reflect that data entry is a drop-down box.

Response: The final rule is revised to incorporate these recommendations.

F. Inclusion of Shipping Documents

Comment: A respondent requested at paragraph F–301(b)(2)(i), SHIPMENT NO., that contractors must always provide packaging documentation in their shipment containers. If contractors choose to provide their own packaging documentation they must ensure their documentation includes their shipment number data. The respondent recommended the addition of a statement that any document utilized as a packing list must include the shipment number information. Additionally, the respondent suggested revising the text with an example to clarify that the shipment number format requires first three data positions to be alpha, fourth position alpha-numeric and last three positions are numeric e.g., DFAR001 or DAR0001.

Response: The recommendations are incorporated into the final rule.

Comment: A respondent requested at paragraph F–301(b)(3), Date Shipped, that a ‘‘MIRR clause does not identify electronic data submission timeline.’’ The respondent recommended the DFARS MIRR language include the statement that the contractor will submit the completed MIRR via WAWF within one business day of material shipment. The respondent stated that material shipments missing shipment numbered data causes manual research in order to process the receipt acceptance.

Response: The MIRR is completed at the time of delivery of goods or services and, for both WAWF and paper DD form 250s, copies of the MIRR accompany the shipment. Paragraph F–301(b)(3) is revised to add a reference to ‘‘see F– 303).’’

Comment: A respondent requested at paragraph F–305, Invoice instructions, adding a statement that contractors should ensure the packaging documentation includes a Government signed receiving report when the contract requires origin inspection and acceptance. The respondent further stated that contractors must include the signed document indicating material receipt acceptance has occurred in the container with the exception of material shipments that are approved for Alternate Release Procedures.

Response: The final rule is revised to incorporate the recommendations.

G. F–301(b)(4)—Bill of Lading Information

Comment: A respondent stated, at paragraph F–301(b)(4)(i), that bills of lading are obtained when an item is being scheduled to ship, and thus may not be available until after the item has been source inspected/accepted. The respondent recommended clearly stating that the field is not required prior to source inspection and acceptance, nor, in their opinion, should a receiving report correction be issued only for adding a bill of lading after it has been obtained. Further, the respondent suggested revising F– 301(b)(4), to enter the commercial or Government bill of lading number after ‘‘BL.’’

Response: Currently, the ‘‘Bill of Lading Number’’ field is not a mandatory field in WAWF. Additional changes to the Bill of Lading functionality may be made later on.

H. Line Haul Information Changes

Comment: One respondent suggested at paragraph F–301(b)(5), Line Haul Mode, that this is an item that may not be stated accurately until after signature, when the item is scheduled for shipment, and recommended that this field not be required prior to source inspection/acceptance.

Response: There is flexibility in WAWF regarding this entry as ‘‘Line Haul Mode’’ field is not a mandatory field.

I. Allow for WAWF Acceptance at ‘‘Other’’ Using Code ‘‘D’’

Comment: Two respondents suggested that paragraph F–301(b)(6), Inspection and Acceptance Point, be changed from ‘‘WAWF allows acceptance at Other’’ to ‘‘WAWF allows acceptance at Other (O).’’ Two respondents suggested adding, that for purposes of conforming to contract, ‘‘0’’ is equivalent to ‘‘D’’.

Response: The final rule is revised to incorporate the recommendations.

J. Marked for Codes

Comment: A respondent suggested at paragraphs F–301(b)(7), Prime Contractor/Code, F–301(b)(9), Shipped From/Code, and F–301(b)(11), Payment Will Be Made By/Code, that these codes must match the contract, however, the street address is not required to match the contract. The respondents further opined that WAWF does not require the entry of an address code in either WAWF 4.2 or 5.0, and concluded that the requirement of an address should be clarified.

Response: No clarification is needed in the rule. Contractors can fulfill contracts with shipments from their location or from subsidiaries or subcontractors. Therefore, the shipped from code doesn’t necessarily need to match the contract. Further, the receiving report is used for services as well as supplies where there will be no ship-from code.

Comment: One respondent requested clarification at paragraph F–301(b)(13), Marked For/Code, concerning the ‘‘Marked For Address.’’ Previously, textual marking information associated with the ‘‘Marked For DoDAAC’’ was placed in the address lines of the ‘‘Marked For DoDAAC.’’ Now that DoD is moving away from paper documents, the respondent wanted confirmation to

use the data fields as labeled using the code area for the ‘‘Marked For DoDAAC’’ and address only, and the ‘‘Mark For Rep’’ and ‘‘Mark For Secondary’’ fields used for the text information.

Response: The respondent is correct concerning use of these fields. No change to the rule is required.

K. Marked for Codes

Comment: A respondent requested revisions at paragraph F–301(b)(13) to reflect that a ‘‘Marked For Code’’ cannot be a CAGE code, only a DoDAAC or Military Assistance Program Address Codes.

Response: No revision is required in response to this comment since a CAGE code can be entered in the ‘‘Mark For Code’’ field.

L. National Stock Number Entry Requirements

Comment: A respondent recommended at paragraph F– 301(b)(15)(1)(A) clarifying that in the ‘‘Type’’ drop-down field, that the user is to select the corresponding type for the data entered, and that if no National Stock Number or other valid ‘‘Type’’ is available, the word ‘‘None’’ may be entered for the Stock/Part Number, with a corresponding ‘‘Type’’ of any value other than the National Stock Number selected from the drop-down box. Another respondent stated that if the contract contains NSNs as well as other identification (e.g., part numbers), a contractor should place the NSN information in the Stock Part Number field and the remaining numbers in the line item description field.

Response: The paragraph is revised accordingly to incorporate the first recommendation. In regards to the second comment concerning NSNs as well as other identifying information, the respondent is correct in how this process works. The text is revised to ensure this meaning is understood.

M. The ‘‘Description’’ Field Length and Use

Comment: A respondent asked whether or not at paragraph F– 301(b)(15)(ii), if exceeding 20 characters in the description field is a cause for the rejection of a receiving report. Further, the respondent requested clarification on whether or not the description refers to what is defined in the payment system as a ‘‘service’’ line item as opposed to a ‘‘supply’’ line item. A WAWF RR for a repair is for acceptance of the repair and not of the item repaired. However, repair line items are frequently defined as ‘‘supply’’ line items and therefore the ship-to location is the actual ship-to of the repaired item.

Response: Exceeding 20 characters in the description is not a cause for rejection of a receiving report. In response to the second comment, the respondent is correct that the description refers to the designation in the payment system as a ‘‘service’’ line item as opposed to a ‘‘supply’’ line item.

N. GFP Drop-Down Box Comment: A respondent suggested that clarification at paragraph F– 301(b)(15)(iv)(E) is required for how the text relates to the GFE drop-down box, and whether or not the drop-down box is insufficient for this situation. The correct use of GFE drop-down box needs to be fully explained. If it is not the same as the entry of ‘‘GFP’’ in the description text, the differences must be clarified. Response: The drop-down GFE box is not related to this section. It is obsolete and no longer used and will be deleted in a future version of WAWF. The GFP

drop-down box is sufficient for use of GFP.

O. F–301—General Comments Regarding Unit Price

Comment: Two respondents stated that at paragraph F–301(b)(18), the proposed text is identical to that used in the current Appendix F for unit price (see F–301, block 19, on current Appendix F). They further stated that this document will never be used as an invoice; thus, in their opinion, there should not be a requirement to fill in a unit price, except in the cases listed. Further, one respondent recommended at paragraph F–301(b)(18)(i) the addition of the text to clarify the handling of unit prices and property transfer. Another respondent had a concern with unit prices that were as little as twenty cents and not being accepted by the Government agency. This respondent also noted that an estimated price can be entered in the description field, but the Government contracting office expects the price entered in the price field, even though WAWF does not accept the entry the way the agency had requested. The respondent went on to state that the DFARS does not address the electronic aspect of WAWF and billing.

Response: The unit price is required. In regard to the intent of the paragraph on the WAWF initiated property transfer, the purpose is to alert the contractor that a property transfer will be generated as a result of the completion of the WAWF RR. In regard to the unit price, it is required when the clause at DFARS 252.211–7003, Item Identification and Valuation, is used; otherwise the use of the field is optional and at the discretion of the vendor. When used for item unique identification, the unit price does not necessarily reflect the billing price on the contract. The DFARS addresses electronic billing at 252.232.7003, Electronic Submission of Payment Requests and Receiving Reports. No change in the rule is required in response to these comments.

P. F–301—General Comments Regarding Contract Quality Assurance

Comment: One respondent suggested at paragraph F–301(b)(20)(ii), that the term ‘‘execute’’ is misleading and will cause confusion. The respondent also stated that removing the quotation marks will ensure a clear direction. The respondent further suggested at paragraphs F–301(b)(20)(iv)(A)(3) and

(v) the steps described should match the actual step taken in WAWF to electronically sign the document and recommended the text be revised.

Response: The quotation marks used for the term ‘‘execute’’ are removed. In regard to the electronic signatures, the text has been revised accordingly to match the actual steps taken in WAWF.

Q. Comment Regarding F–301(b)(21)

Comment: One respondent suggested paragraph F–301(b)(21) should be referenced as the COMMENTS block and/or MISC INFO tab.

Response: The title is revised to incorporate ‘‘MISC. INFO’’ as suggested.

R. Printed Documents

Comment: One respondent recommended at paragraph F–306(b), that the text be revised to clarify that if a signed copy is required by the contractor, the contractor will print the WAWF RR only after a signature is applied by the Government Inspector or Acceptor in WAWF.

Response: This text is revised accordingly to incorporate the suggestion.

S. Part 4—General Comments

Comment: One respondent stated that in Part 4 there are multiple references to section F–301 and recommended, where appropriate, the references be updated to the corresponding F–401 reference. The respondent also suggested that at paragraph F–401(b)(2), ‘‘Starting over with 0001’’ cannot be used in an electronic world, and that the DD Form 250 needs to conform to the same requirement (F–301(b)(2)) as the WAWF RR.

Response: Part 4 references in the final rule are updated as required. In regard to shipment numbering, the system will not allow the shipment number to start over with 0001 as any duplication of the combined contract number, delivery order number, and shipment number results a duplication error. In these cases, WAWF requires a change in the shipment number prefix. While on a paper DD Form 250, it is possible to start over with 0001 when the series is completely used, a change in the shipment number prefix should be required for consistency. The text at F–401(b)(2) is revised to clarify this process.

T. Part 5 Comments

Comment: A respondent commented on Part 5 concerning the ‘‘alternate’’ release procedure. The respondent noted that all other references in the document are to ‘‘alternative’’ release procedure, and would like to know which is correct.

Response: The final rule is revised in Part 5 to refer to ‘‘alternative’’ in lieu of ‘‘alternate.’’

U. WAWF Versions

Comment: A respondent stated there are a number of changes incorporated in the latest WAWF release that impact MIRR data entry. The respondent noted that changes include removal of ‘‘other’’ as an acceptance point and replacing it with more specific data entries for inspection, acceptance, and ship to DoDAAC codes.

Response: There is no need to change paragraph F–301(b)(6) as ‘‘Other’’ will remain an option for the inspection and acceptance point. DoD adopted business rules regarding the inspection, acceptance, and ship-to fields but kept the source, destination, and other inspection and acceptance points. Therefore, no change is necessary.

V. General Comments

Comment: One respondent stated that Appendix F addresses the use of the MIRR in WAWF, yet multiple types of receiving and performance transactions exist. Examples include:

Receiving Report.

Receiving Report—COMBO.

Invoice 2-in-1 (Services Only).

Response: Appendix F only provides instruction for use of the MIRR. Invoice 2-in-1 (services only) is used to document acceptance of services when a MIRR is not required. The COMBO transaction in WAWF allows for the vendor to do one set of data entry that is split in the system into both a receiving report, identical to the non-COMBO receiving report, and an invoice. The instructions for the data entry in the COMBO are the same as the data fields for the receiving report.

Comment: A respondent suggested at paragraph F–301 rewording to state that Electronic Document Access (EDA) will automatically populate all available and applicable contract data.

Response: This change is incorporated at F–301(a)(3) in the final rule.

Comment: A respondent stated that they had received multiple rejections of receiving reports due to a formatting issue. In one case, the receiving report was rejected due to a dash being dropped out of the line item stock number upon loading to WAWF. In the respondent’s opinion, the missing dash should not be a reason for rejection. The respondent requested adding specific language to F–301(b)(15) to indicate that missing dashes are acceptable in the line item stock number.

Response: The respondent indicates a dash was missing from the part number. This changes the item identification significantly. There are no known concerns with the National Stock Number functionality.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of

E.O. 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 does not expect this final 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. The final rule provides guidance on the preparation and use of the electronic WAWF Receiving Report which is now required for use in most contracts. Additionally, the rule addresses the WAWF capability and instructions to comply with reporting requirements for IUID and RFID data submissions. DoD has prepared a Final Regulatory Flexibility Analysis, which is summarized as follows:

The objective of the rule is to facilitate maximum use of WAWF by providing detailed guidance. DFARS Subpart 232.70, Electronic Submission and Processing of Payment Requests and Receiving Reports, prescribes policies for submitting and processing payment requests in electronic form to comply with 10 U.S.C. 2227, Electronic Submission and Processing of Claims for Contract Payments. WAWF is the DoD system for contractors to submit payment and receiving reports in an electronic format. This final rule affects all DoD contractors who are not exempt from using WAWF. Exempt classes of contracts are those that are listed under the seven categories of contracts at DFARS 232.7002, Policy. Record keeping required is limited to that necessary to properly invoice and record shipping and receiving information under Government contracts. The preparation of these records requires clerical and analytic skills to create the documents and input them into the electronic WAWF system.

The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule that would meet the requirements of 10 U.S.C. 2227, Electronic Submission and Processing of Claims for Contract Payments. Any impact on small business is expected to be beneficial by providing detailed use, preparation and distribution guidance for electronic submission in lieu of preparing and submitting paper invoices and receiving records.

V. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The Appendix F information collection requirements in this rule are approved under Office of Management and Budget Control Number 0704–0248, DFARS Appendix F, Material Inspection and Receiving Report. The current approval took into consideration use of the automated WAWF system, so inclusion of the WAWF guidance into Appendix F adds no new information collection requirements.

List of Subjects in 48 CFR Appendix F to Chapter 2

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR chapter 2 is amended by revising appendix F to read as follows:

Appendix F to Chapter 2—Material Inspection and Receiving Report

Sec.

Part 1—Introduction

F–101 General. F–102 Applicability. F–103 Use. F–104 Application.

Part 2—Contract Quality Assurance On Shipments Between Contractors

F–201 Procedures.

Part 3—Preparation of the Wide Area Workflow Receiving Report (WAWF RR)

F–301 Preparation instructions. F–302 Mode/method of shipment codes. F–303 Consolidated shipments. F–304 Correction instructions. F–305 Invoice instructions. F–306 Packing list instructions. F–307 Receiving instructions.

Part 4—Preparation of the DD Form 250 and DD Form 250C

F–401 Preparation instructions. F–402 Mode/method of shipment codes. F–403 Consolidated shipments. F–404 Multiple consignee instructions. F–405 Correction instructions. F–406 Invoice instructions. F–407 Packing list instructions. F–408 Receiving instructions.

Part 5—Distribution of Wide Area Workflow Receiving Report (WAWF RR), DD Form 250 and DD Form 250C

F–501 Distribution of WAWF RR. F–502 Distribution of DD Form 250 and DD Form 250C.

Part 6—Preparation of the DD Form 250–1 (Loading Report)

F–601 Instructions.

Part 7—Preparation of the DD Form 250–1 (Discharge Report)

F–701 Instructions.

Part 8—Distribution of the DD Form 250–1

F–801 Distribution.F–802 Corrected DD Form 250–1. F–802 Corrected DD Form 250–1.

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

Part 1—Introduction

F–101 General.

(a) This appendix contains procedures and instructions for the use, preparation, and distribution of the Wide Area WorkFlow Receiving Report (WAWF RR), the DD Form 250, Material Inspection and Receiving Report (MIRR) and (DD Form 250 series equivalents) and commercial shipping/ packing lists used to document Government contract quality assurance.

(b) The use of the DD Form 250 is on an exception basis (see DFARS 232.7003(a)) because use of the WAWF RR is now required by most DoD contracts. WAWF provides for electronic preparation and documentation of acceptance of supplies and services, and electronic invoicing. In addition WAWF allows the printing of a RR that can be used as a packing list or when a signed copy is required.

F–102 Applicability.

(a) DFARS 252.232–7003, Electronic Submission of Payment Requests and Receiving Reports, requires payment requests and receiving reports using WAWF in nearly all cases.

(b) The provisions of this appendix also apply to supplies or services acquired by DoD when the clause at DFARS 252.246– 7000, Material Inspection and Receiving Report, is included in the contract.

(c) When DoD provides quality assurance or acceptance services for non-DoD activities, prepare a MIRR using the instructions in this appendix, unless otherwise specified in the contract.

F–103 Use.

(a) The WAWF RR and the DD Form 250 are multipurpose reports used—

(1) To provide evidence of Government contract quality assurance at origin or destination;

(2) To provide evidence of acceptance at origin, destination, or other;

(3) For packing lists;

(4) For receiving;

(5) For shipping;

(6) As a contractor invoice (the WAWF RR or DD Form 250 alone cannot be used as an invoice, however the option exists to create an invoice from the Receiving Report or a Combo (Invoice and Receiving Report) both of which minimize data entry); and

(7) As commercial invoice support.

(b) Do not use the WAWF RR or the DD Form 250 for shipments—

(1) By subcontractors, unless the subcontractor is shipping directly to the Government; or

(2) Of contract inventory. The WAWF Property Transfer document should be used for this type of shipment. Training for the preparation of this document type is available at https://wawftraining.eb.mil, under the Property Transfer and Receipt section.

(c) The contractor prepares the WAWF RR or the DD Form 250, except for entries that an authorized Government representative is required to complete. When using a paper DD Form 250, the contractor shall furnish sufficient copies of the completed form, as directed by the Government representative.

(d) Use the DD Form 250–1:

(1) For bulk movements of petroleum products by tanker or barge to cover—

(i) Origin or destination acceptance of cargo; or

(ii) Shipment or receipt of Government owned products.

(2) To send quality data to the point of acceptance in the case of origin inspection on FOB destination deliveries or preinspection at product source. Annotate the forms with the words ‘‘INSPECTED FOR QUALITY ONLY.’’

(e) In addition to the above uses, the WAWF RR provides additional functionality, not provided by the paper DD Form 250 that complies with the following requirements:

(1) Item Unique Identification (IUID), when the clause at DFARS 252.211–7003, Item Identification and Valuation, is used in the contract, reporting of IUID data is required. WAWF captures the IUID data and forwards the data to the IUID registry after acceptance. WAWF can be used to report Unique Item Identifiers (UIIs) at the line item level and also UIIs embedded at the line item level.

(2) Radio Frequency Identification (RFID), when the clause at DFARS 252.211–7006, Radio Frequency Identification, is used in the contract, WAWF will capture the RFID information and forward the data to the receiving location. Using WAWF is the only way a contractor can comply with the clause to furnish RFID data via an Advance Shipping Notice (ASN). The RFID information may be added at time of submission, or via the WAWF Pack Later functionality after acceptance.

F–104 Application.

(a) WAWF RR and DD Form 250.

(1) Use the WAWF RR or DD Form 250 for delivery of contract line, subline, exhibit line, or exhibit subline items. Do not use the WAWF RR or DD Form 250 for those exhibit line or exhibit subline items on a DD Form 1423, Contract Data Requirements List, which indicate no DD Form 250 is required.

(2) If the shipped to, marked for, shipped from, mode of shipment, contract quality assurance and acceptance data are the same for more than one shipment made on the same day under the same contract, contractors may prepare one WAWF RR or DD Form 250 to cover all such shipments.

(3) If the volume of the shipment precludes the use of a single car, truck, or other vehicle, prepare a separate WAWF RR or DD Form 250 for the contents of each vehicle.

(4) When a shipment is consigned to an Air Force activity and the shipment includes items of more than one Federal supply class (FSC) or material management code (MMC), prepare a separate WAWF RR or DD Form 250 for items of each of the FSCs or MMCs in the shipment. However, the cognizant Government representative may authorize a single WAWF RR or DD Form 250, listing each of the FSCs or MMCs included in the shipment on a separate continuation sheet. The MMC appears as a suffix to the national stock number applicable to the item.

(5) Consolidation of Petroleum Shipments on a Single WAWF RR or DD Form 250.

(i) Contiguous United States. Contractors may consolidate multiple car or truck load shipments of petroleum made on the same day, to the same destination, against the same contract line item, on one WAWF RR or DD Form 250. To permit verification of motor deliveries, assign each load a load number which can be identified to the shipment number in Block 2 of the DD Form 250. Include a shipping document (commercial or Government) with each individual load showing as a minimum—

(A) The shipper;

(B) Shipping point;

(C) Consignee;

(D) Contract and line item number;

(E) Product identification;

(F) Gross gallons (bulk only);

(G) Loading temperature (bulk only);

(H) American Petroleum Institute gravity (bulk only);

(I) Identification of carrier’s equipment;

(J) Serial number of all seals applied; and

(K) Signature of supplier’s representative. When acceptance is at destination, the receiving activity retains the shipping document(s) to verify the entries on the consignee copy of the DD Form 250 forwarded by the contractor (reference F–401, Table 1) before signing Block 21b.

(ii) Overseas. The same criteria as for contiguous United States applies, except the consolidation period may be extended, if acceptable to the receiving activity, shipping activity, Government finance office, and the authorized Government representative having cognizance at the contractor’s facility. In addition, the contractor may include more than one contract line item in each WAWF RR or DD Form 250 if the shipped to, marked for, shipped from, mode of shipment, contract quality assurance, and acceptance data are the same for all line items.

(6) Consolidation of Coal Shipments on a Single WAWF RR or DD 250. Contractors may consolidate multiple railcar or truck shipments of coal made on the same day, to the same destination, against the same contract line items, on one WAWF RR or DD 250. To permit verification of truck deliveries, assign each load a load number which can be identified to the shipment number in Block 2 of the DD Form 250 and the analytical test report. Include a commercial shipping document with each individual truck load showing as a minimum—

(i) The shipper;

(ii) The name or names;

(iii) Location and shipping point of the mine or mines from which the coal originates;

(iv) The contract number;

(v) The exact size of the coal shipped; and

(vi) A certified weighmaster’s certification of weight for the truckload.

Include a waybill with each rail shipment showing the identical information. To permit verification of rail deliveries, identify each railcar number comprising the shipment to the shipment number in Block 2 of the DD Form 250 and the analytical test report. When acceptance is at destination, the receiving activity must retain the shipping document(s) to verify the entries on the consignee copy of the DD Form 250.

(b) DD Form 250–1.

(1) Use a separate form for each tanker or barge cargo loaded.

(2) The contractor may report more than one barge in the same tow on a single form if on the same contract and consigned to the same destination.

(3) When liftings involve more than one contract, prepare separate forms to cover the portion of cargo loaded on each contract.

(4) Prepare a separate form for each product or grade of product loaded.

(5) Use a separate document for each tanker or barge cargo and each grade of product discharged.

(6) For discharge, the contractor may report more than one barge in the same tow on a single form if from the same loading source.

Part 2—Contract Quality Assurance on Shipments Between Contractors

F–201 Procedures

Follow the procedures at PGI F–201 for evidence of required Government contract quality assurance at a subcontractor’s facility.

Part 3—Preparation of the Wide Area Workflow Receiving Report (WAWF RR)

F–301 Preparation instructions.

(a) General.

(1) Preparation instructions and training for the WAWF RR are available at https:// wawftraining.eb.mil. The instructions on preparing a WAWF RR are part of the Vendor Training section.

(2) Prime contractors can direct subcontractors to prepare and submit documents in WAWF by giving their subcontractors access to WAWF via the creation of a Commercial and Government Entity (CAGE) extension to the prime CAGE.

(3) If the contract is in Electronic Document Access (EDA) (DoD’s contract repository), then the WAWF system will automatically populate all available and applicable contract data.

(i) When source acceptance is required, WAWF will populate the ‘‘Inspect By’’ with the ‘‘Admin by’’ Department of Defense Activity Address Code (DoDAAC). The vendor shall change the DoDAAC if Government Source Inspection (GSI) is performed at other than the ‘‘Admin By.’’

(ii) Any fields that have been pre-filled may be changed.

(iii) WAWF will also verify that CAGE codes are valid and active in the CCR (Central Contractor Registration), and that DoDAACs and Military Assistance Program Address Codes (MAPACs) are valid in Defense Automatic Addressing System (DAAS).

(4) WAWF will populate the address information for CAGE codes, DODAACs, and MAPACs from CCR and DAAS. These sites are the DoD definitive sources for address information. Any fields that have been pre-filled may be changed or additional information added.

(5) Do not include classified information in WAWF.

(b) Completion instructions.

(1) Contract no/delivery order No.

(i) Enter the 13-position alpha-numeric basic Procurement Instrument Identification Number (PIIN) of the contract. When applicable, enter the four-position alpha-numeric call/order serial number that is supplementary to the 13-position basic PIIN. This number is also referred to as the Supplementary Procurement Instrument Identification Number (SPIIN). Use SPIINs for (also see Subpart 204.70)—

(A) Delivery orders under indefinite-delivery type contracts;

(B) Orders under basic ordering agreements; and

(C) Calls under blanket purchase agreements.

(ii) Except as indicated in paragraph (b)(1)(iii) of this appendix, do not enter supplementary numbers used in conjunction with basic PIINs to identify—

(A) Modifications of contracts and agreements;

(B) Modifications to calls or orders; or

(C) Document numbers representing contracts written between contractors.

(iii) When shipping instructions are furnished and shipment is made before receipt of the confirming contract modification (SF 30, Amendment of Solicitation/Modification of Contract), enter a comment in the Misc. Info Tab to this effect. This will appear in the Comments section of the printed WAWF RR.

(iv) For DoD delivery orders on non-DoD contracts, enter the non-DoD contract number in the contract number field and enter the DoD contract number and, when applicable, delivery order number in the delivery order field.

(2) Shipment No.

(i) The shipment number format requires first three data positions to be alpha, fourth position alpha-numeric and last three positions numeric, e.g., DFAR001 or DAR0001. Any document used as a packing list must include the shipment number information.

(A) The prime contractor shall control and assign the shipment number prefix. The shipment number shall consist of three alphabetic characters for each ‘‘Shipped From’’ address. The shipment number prefix shall be different for each ‘‘Shipped From’’ address and shall remain constant throughout the life of the contract. The prime contractor may assign separate prefixes when shipments are made from different locations within a facility identified by one ‘‘Shipped From’’ address.

(B) Number the first shipment 0001 for shipments made under the contract or contract and order number from each ‘‘Shipped From’’ address, or shipping location within the ‘‘Shipped From’’ address. Consecutively number all subsequent shipments with the identical shipment number prefix. While shipments should be created sequentially they can be released and accepted out of sequence.

(1) Use alpha-numeric serial numbers when more than 9,999 numbers are required. Serially assign alpha-numeric numbers with the alpha in the first position (the letters I and O shall not be used) followed by the three-position numeric serial number. Use the following alpha-numeric sequence: A000 through A999 (10,000 through 10,999) B000 through B999 (11,000 through 11,999) Z000 through Z999 (34,000 through 34,999)

(2) When this series is completely used, the shipment number prefix will have to be changed when the series is completely used. WAWF will not allow duplicate shipment numbers to be created against a contract or contract and delivery order.

(ii) Reassign the shipment number of the initial shipment where a ‘‘Replacement Shipment’’ is involved (see paragraph (b)(16)(iv)(F) of this appendix).

(iii) The prime contractor shall control deliveries and on the final shipment of the contract shall end the shipment number with a ‘‘Z.’’ Where the final shipment is from other than the prime contractor’s plant, the prime contractor may elect either to—

(A) Direct the subcontractor making the final shipment to end that shipment number with a ‘‘Z’’; or

(B) Upon determination that all subcontractors have completed their shipments, to correct the DD Form 250 (see F–304) covering the final shipment made from the prime contractor’s plant by addition of a ‘‘Z’’ to that shipment number.

(iv) Contractors follow the procedures in F–305 to use commercial invoices.

(3) Date shipped. Enter the date the shipment is released to the carrier or the date the services are completed. If the shipment will be released after the date of contract quality assurance and/or acceptance, enter the estimated date of release. When the date is estimated, enter an ‘‘E’’ or select an ‘‘E’’ from the drop down menu in the ‘‘Estimated’’ block after the date. Do not delay submission of the WAWF RR for lack of entry of the actual shipping date. Correction of the WAWF RR is not required to show the actual shipping date (see F–303). Once the document is submitted the shipment date cannot be changed.

(4) B/L TCN. When applicable, enter—

(i) The commercial or Government bill of lading number after ‘‘B/L;’’ WAWF provides the capability to separately and correctly identify the Government Bill of Lading (GBL) from a Commercial Bill of Lading (CBL). An authorized user will select whether the entered bill of lading number is either a GBL number or a CBL number.

(ii) The transportation control number must be a 17 alpha/numeric digit min/max field, and WAWF provides the capability to enter two secondary transportation tracking numbers.

(5) Line haul mode. Select the Line Haul Mode of Shipment code from a drop down menu in WAWF.

(6) Inspection and acceptance point. Enter an ‘‘S’’ for Origin or ‘‘D’’ for Destination. In addition to ‘‘S’’ and ‘‘D,’’ WAWF allows acceptance at Other (O). For purposes of conforming to contract, ‘‘O’’ is equivalent to ‘‘D’’. In WAWF, destination acceptance is performed by the ‘‘Ship to’’ DODAAC organization and ‘‘Other’’ permits the acceptance of destination documents at a location other than the ‘‘Ship to.’’ The goods or services will be shipped to one location and the paperwork will be routed to another location for the actual acceptance.

(7) Prime contractor/code. Enter the prime CAGE code to which the contract was awarded.

(8) Administered by/code. Enter the DoDAAC code of the contract administration office cited in the contract.

(9) Shipped from/code.

(i) Enter the CAGE or DoDAAC code of the ‘‘Shipped From’’ location. If it is the same as the CAGE code leave blank.

(ii) For performance of services line items which do not require delivery of items upon completion of services, enter the code of the location at which the services were performed. As mentioned in (i) above, if identical to the prime CAGE code leave blank.

(10) FOB. Enter an ‘‘S’’ for Origin or ‘‘D’’ for Destination as specified in the contract. Enter an alphabetic ‘‘O’’ if the ‘‘FOB’’ point cited in the contract is other than origin or destination.

(11) Payment will be made by/code. Enter the DoDAAC code of the payment office cited in the contract.

(12) Shipped to/code. Enter the DoDAAC, MAPAC, or CAGE code from the contract or shipping instructions.

(13) Marked for/code. Enter the code from the contract or shipping instructions. Only valid DoDAACs, MAPACs, or CAGE codes can be entered. Vendors should use the WAWF ‘‘Mark for Rep’’ and ‘‘Mark for Secondary’’ fields for textual marking information specified in the contract.

(14) Item No. Enter the item number used in the contract. Use a valid 4 or 6 character line item number under the Uniform Contract Line Item Numbering System (see 204.71). Line item numbers with 6 characters with numbers in the final two positions are not deliverable or billable.

(15) Stock/part number/description.

(i) Enter the following for each line item:

(A) The national stock number (NSN) or noncatalog number. If the contract contains NSNs as well as other identification (e.g., part numbers) the contractor should place the NSN information in the Stock Part Number field and the remaining numbers in the line item description field. The data entered in the NSN field must reflect the NSN of the material item being shipped and should be a valid NSN, 13 positions in length. In the ‘‘Type’’ drop-down field, select the corresponding type for the data entered. If no National Stock Number (NSN) or other valid ‘‘Type’’ is available, the word ‘‘NONE’’ may be entered for the Stock/Part Number, with a corresponding ‘‘Type’’ of any value other than NSN selected from the drop-down box.

(B) In the description field, if required by the contract for control purposes, enter: The make, model, serial number, lot, batch, hazard indicator, or similar description.

(C) The Military Standard Requisitioning and Issue Procedures (MILSTRIP) must be placed on the MILSTRIP Tab, not in the line item description field. Enter the MILSTRIP data for each CLIN when MILSTRIP data is identified in the contract.

(ii) For service line items, select SV for ‘‘SERVICE’’ in the type field followed by as short a description as is possible in the description field. Some examples of service line items are maintenance, repair, alteration, rehabilitation, engineering, research, development, training, and testing. The ‘‘Ship To’’ code and the ‘‘Unit’’ will have to be filled out. The ‘‘Shipped To’’ code is the destination Service Acceptor Code for WAWF. If source inspected and accepted enter the service performance location as the ‘‘Ship To’’ code.

(iii) For all contracts administered by the Defense Contract Management Agency, with the exception of fast pay procedures, enter the gross weight of the shipment.

(iv) In the description field enter the following as appropriate (entries may be extended through Block 20).

(A) Enter in capital letters any special handling instructions/limits for material environmental control, such as temperature, humidity, aging, freezing, shock, etc.

(B) When a shipment is chargeable to Navy appropriation 17X4911, enter the appropriation, bureau control number (BCN), and authorization accounting activity (AAA) number (e.g., 17X4911–14003–104).

(C) When the Navy transaction type code (TC), ‘‘2T’’ or ‘‘7T’’ is included in the appropriation data, enter ‘‘TC 2T’’ or ‘‘TC 7T.’’

(D) When an NSN is required by but not cited in a contract and has not been furnished by the Government, the contractor may make shipment without the NSN at the direction of the contracting officer. Enter the authority for such shipment.

(E) When Government furnished property (GFP) is included with or incorporated into the line item, enter the letters ‘‘GFP.’’

(F) On shipments of Government furnished aeronautical equipment (GFAE) under Air Force contracts, enter the assignment AERNO control number, e.g., ‘‘AERNO 60–6354.’’

(G) For items shipped with missing components, enter and complete the following: ‘‘Item(s) shipped short of the following component(s): NSN or comparable identification llll, Quantity llll, Estimated Value llll, Authority llll’’

(H) When shipment is made of components which were short on a prior shipment, enter and complete the following: ‘‘These components were listed as shortages on shipment number llll, date shipped llll’’

(I) When shipments involve drums, cylinders, reels, containers, skids, etc., designated as returnable under contract provisions, enter and complete the following: ‘‘Return to llll, Quantity llll, Item llll, Ownership (Government/ contractor).’’

(J) Enter the total number of shipping containers, the type of containers, and the container number(s) assigned for the shipment.

(K) On foreign military sales (FMS) shipments, enter the special markings, and FMS case identifier from the contract. Also enter the gross weight.

(L) When test/evaluation results are a condition of acceptance and are not available prior to shipment, the following note shall be entered if the shipment is approved by the contracting officer:

‘‘Note: Acceptance and payment are contingent upon receipt of approved test/ evaluation results.’’

The contracting officer will advise—

(1) The consignee of the results (approval/ disapproval); and

(2) The contractor to withhold invoicing pending attachment of the approved test/ evaluation results.

(M) For clothing and textile contracts containing a bailment clause, enter the words ‘‘GFP UNIT VALUE.’’

(N) When the initial unit incorporating an approved value engineering change proposal (VECP) is shipped, enter the following statement: This is the initial unit delivered which incorporates VECP No. llll, Contract Modification No. llll, dated llll

(16) Quantity shipped/received.

(i) Enter the quantity shipped, using the unit of measure in the contract for payment. When a second unit of measure is used for purposes other than payment, enter the appropriate quantity in the description field.

(ii) On the final shipment of a line item of a contract containing a clause permitting a variation of quantity and an underrun condition exists, the prime contractor shall choose the Ship Advice Code ‘‘Z’’. Where the final shipment is from other than the prime contractor’s plant and an underrun condition exists, the prime contractor may elect to direct the subcontractor making the final shipment to choose the Ship Advice Code ‘‘Z’’;

(iii) When the Government is performing destination acceptance the acceptor should enter actual quantity received in apparent good condition in the ‘‘Qty. Accepted’’ field of the Acceptor Line Item Tab.

(17) Unit of measure. Enter the abbreviation of the unit measure as indicated in the contract for payment. Where a second unit of measure is indicated in the contract for purposes other than payment or used for shipping purposes, enter the second unit of measure in the description field. Authorized abbreviations are listed in MIL–STD–129, Marking for Shipping and Storage and in the WAWF Unit of Measure Table Link. For example, LB for pound, SH for sheet.

(18) Unit price. The contractor may, at its option, enter unit prices on all WAWF RR copies, except as a minimum:

(i) The contractor shall enter unit prices for each item of property fabricated or acquired for the Government and delivered to a contractor as Government furnished property (GFP). Get the unit price from Section B of the contract. If the unit price is not available, use an estimate. The estimated price should be the contractor’s estimate of what the items will cost the Government. When the price is estimated, enter ‘‘Estimated Unit Price’’ in the description field. However, if the contract has Item Unique Identification (IUID) requirements and the receiving report is being processed in WAWF the unit price represents the acquisition cost that will be passed to the IUID registry. Therefore, the unit price is required (see the clause at DFARS 252.211–7003, Item Identification and Valuation). When delivering GFP via WAWF to another contractor, WAWF will initiate a property transfer if the vendor who is initiating the WAWF RR is also registered as a vendor property shipper in WAWF and the vendor receiving the property is also a vendor property receiver in WAWF.

(ii) For clothing and textile contracts containing a bailment clause, enter the cited Government furnished property unit value as ‘‘GFP UNIT VALUE’’ in the description field.

(19) Amount. WAWF will calculate and populate the amount by multiplying the unit price times the quantity.

(20) Contract Quality Assurance (CQA).

(i) The words ‘‘conform to contract’’ contained in the text above the signature block in the WAWF RR Header Tab relate to quality and to the quantity of the items on the report. Enter notes taking exception in Misc. Info Tab comment field or on attached supporting documents with an appropriate block cross-reference.

(ii) When a shipment is authorized under an alternative release procedure, contractors will execute the alternative release procedure in WAWF by including the appropriate indicator in the electronic transaction rather than through inclusion or attachment of the text of the certificate. The alternative release procedure only provides for release of shipment; Government acceptance must still be indicated by a Government official’s signature on the WAWF RR.

(iii) When contract terms provide for use of Certificate of Conformance and shipment is made under these terms, contractors will execute Certificates in WAWF by including the appropriate indicator in the electronic transaction rather than through inclusion or attachment of the text of the certificate. Government acceptance must still be indicated by a Government official’s signature on the WAWF RR.

(iv) Origin.

(A) The authorized Government representative must:—

(1) Place an ‘‘X’’ in the appropriate CQA and/or acceptance box(es) to show origin CQA and/or acceptance; and

(2) Sign and date.

WAWF will enter the typed, stamped, or printed name, title, email address, and commercial telephone number.

(B) When fast pay procedures apply, the contractor or subcontractor shall select ‘‘FAST PAY’’ when creating the WAWF RR. When CQA is required, the authorized Government representative shall execute the block as required by paragraph (A).

(v) Destination. When CQA and acceptance or acceptance is at destination, the authorized Government representative must—

(A) Place an ‘‘X’’ in the appropriate box(es); and

(B) Sign and date.

WAWF will enter the typed, stamped, or printed name, title, email address, and commercial telephone number.

(21) Contractor use only. MISC. INFO. Self explanatory.

F–302 Mode/method of shipment codes.

Code

Description

A

Motor, truckload.

B

Motor, less than truckload.

C

Van (unpacked, uncrated personal or Government property).

D

Driveaway, truckaway, towaway.

E

Bus.

F

Air Mobility Command (Channel and Special Assignment Airlift Mission).

G

Surface parcel post.

H

Air parcel post.

I

Government trucks, for shipment outside local delivery area.

J

Air, small package carrier.

K

Rail, carload.1

L

Rail, less than carload.1

M

Surface, freight forwarder.

N

LOGAIR.

O

Organic military air (including aircraft of foreign governments).

P

Through Government Bill of Lading (TGBL).

Q

Commercial air freight (includes regular and expedited service provided by major airlines; charters and air taxis).

R

European Distribution System or Pacific Distribution System.

S

Scheduled Truck Service (STS) (applies to contract carriage, guaranteed traffic routings and/or scheduled service).

T

Air freight forwarder.

U

QUICKTRANS.

V

SEAVAN.

W

Water, river, lake, coastal (commercial).

X

Bearer, walk-thru (customer pickup of material).

Y

Military Intratheater Airlift Service.

Z

Military Sealift Command (MSC) (controlled contract or arranged space).

2

Government watercraft, barge, lighter.

3

Roll-on Roll-off (RORO) service.

4

Armed Forces Courier Service (ARFCOS).

5

Surface, small package carrier.

6

Military official mail (MOM).

7

Express mail.

8

Pipeline.

9

Local delivery by Government or commercial truck (includes on base transfers; deliveries between air, water, or motor terminals; and adjacent activities). Local delivery areas are identified in commercial carriers’ tariffs which are filed and approved by regulatory authorities.

1 Includes trailer/container-on-flat-car (excluding SEAVAN).

F–303 Consolidated shipments.

When individual shipments are held at the contractor’s plant for authorized transportation consolidation to a single bill of lading, the contractor may prepare the WAWF RR at the time of CQA or acceptance prior to the time of actual shipment.

F–304 Correction instructions.

Functionality for correcting a WAWF RR is being developed. Preparation instructions and training for corrections will be available at https://wawftraining.eb.mil once the functionality is deployed. The instructions will be part of the vendor training.

F–305 Invoice instructions.

Contractors shall submit payment requests and receiving reports in electronic form, unless an exception in DFARS 232.7002 applies. Contractor submission of the material inspection and receiving information required by this appendix by using the WAWF electronic form (see paragraph (b) of the clause at DFARS 252.232–7003) fulfills the requirement for a DD Form 250 MIRR. Contractors should ensure the packaging documentation includes a Government signed receiving report when the contract requires origin inspection and acceptance. Contractors must include a signed document indicating material receipt and acceptance has occurred in the container with the exception of material shipments that are approved for Alternative Release Procedures (ARP).

F–306 Packing list instructions.

Contractors may also use a WAWF processed RR as a packing list. WAWF provides options to print the RR. These printed RRs may also be used if a signed copy is required.

(a) WAWF provides a print capability for its RR. The WAWF printed RR can be identified by its distinctive format and by the text ‘‘Please look in WAWF for signed copy’’ underneath the ‘‘RECEIVING REPORT’’ title at the top of each printed page. This printed copy can be used as a packing list. If needed, the signature can be verified by reviewing the signed RR in WAWF.

(b) Contractors can also print a RR from their systems (not WAWF). If such a signed copy is required by the contractor, the contractor will print the WAWF RR only after a signature is applied by the Government Inspector or Acceptor in WAWF. Copies printed will be annotated with ‘‘\\original signed in WAWF\\’’ in lieu of the inspector/ acceptor’s signature.

F–307 Receiving instructions.

If CQA and acceptance or acceptance of supplies is required upon arrival at destination, see F–301(b)(20)(v) for instructions.

Part 4—Preparation of the DD Form 250 and DD Form 250C

F–401 Preparation instructions.

(a) General.

(1) Dates must use nine spaces consisting of the four digits of the year, three-position alphabetic month abbreviation, and two digits for the day. For example, 2000AUG07, 2000SEP24.

(2) Addresses must consist of the name, street address/P.O. box, city, state, and ZIP code.

(3) Enter to the right of and on the same line as the word ‘‘Code’’ in Blocks 9 through 12 and in Block 14—

(i) The Commercial and Government Entity Handbook (H4/H8) code;

(ii) The DoD activity address code (DoDAAC) as it appears in the DoD Activity Address Directory (DoDAAD), DoD 4000.25– 6–M; or

(iii) The Military Assistance Program Address Directory (MAPAD) code.

(4) Enter the DoDAAC, CAGE (H4/H8), or MAPAD code in Block 13.

(5) The data entered in the blocks at the top of the DD Form 250c must be identical to the comparable entries in Blocks 1, 2, 3, and 6 of the DD Form 250.

(6) Enter overflow data from the DD Form 250 in Block 16 or in the body of the DD Form 250c with an appropriate cross-reference. Do not number or distribute additional DD Form 250c sheets, solely for continuation of Block 23 data as part of the MIRR.

(7) Do not include classified information in the MIRR. MIRRs must not be classified.

(b) Completion instructions.

(1) Block 1—Procurement instrument identification (Contract) NO. See paragraph F–301(b)(1).

(2) Block 2—Shipment no. See F–301(b)(2), Shipment no. When the series is completely

used, change the shipment number prefix and start with 0001.

(3) Block 3—Date shipped. Enter the date the shipment is released to the carrier or the date the services are completed. If the shipment will be released after the date of CQA and/or acceptance, enter the estimated date of release. When the date is estimated, enter an ‘‘E’’ after the date. Do not delay distribution of the MIRR for entry of the actual shipping date. Reissuance of the MIRR is not required to show the actual shipping date (see F–403).

(4) Block 4—B/L TCN. When applicable, enter—

(i) The commercial or Government bill of lading number after ‘‘B/L;’’

(ii) The transportation control number after ‘‘TCN’’ (when a TCN is assigned for each line item on the DD Form 250 under Block 16 instructions, insert ‘‘See Block 16’’); and

(iii) The initial (line haul) mode of shipment code in the lower right corner of the block (see F–402).

(5) Block 5—Discount terms.

(i) The contractor may enter the discount in terms of percentages on all copies of the MIRR.

(ii) Use the procedures in F–406 when the MIRR is used as an invoice.

(6) Block 6—Invoice no./date.

(i) The contractor may enter the invoice number and actual or estimated date of invoice submission on all copies of the MIRR. When the date is estimated, enter an ‘‘E’’ after the date. Do not correct MIRRs other than invoice copies to reflect the actual date of invoice submission.

(ii) Use the procedures in F–406 when the MIRR is used as an invoice.

(7) Block 7—Page/of. Consecutively number the pages of the MIRR. On each page enter the total number of pages of the MIRR.

(8) Block 8—Acceptance point. Enter an ‘‘S’’ for Origin or ‘‘D’’ for destination.

(9) Block 9—Prime contractor/code. Enter the code and address.

(10) Block 10—Administered by/code. Enter the code and address of the contract administration office cited in the contract.

(11) Block 11—Shipped from/code/fob.

(i) Enter the code and address of the ‘‘Shipped From’’ location. If identical to Block 9, enter ‘‘See Block 9.’’

(ii) For performance of services line items which do not require delivery of items upon completion of services, enter the code and address of the location at which the services were performed. If the DD Form 250 covers performance at multiple locations, or if identical to Block 9, enter ‘‘See Block 9.’’

(iii) Enter on the same line and to the right of ‘‘FOB’’ an ‘‘S’’ for Origin or ‘‘D’’ for Destination as specified in the contract. Enter an alphabetic ‘‘O’’ if the ‘‘FOB’’ point cited in the contract is other than origin or destination.

(iv) For destination or origin acceptance shipments involving discount terms, enter ‘‘DISCOUNT EXPEDITE’’ in at least one-half inch outline-type style letters across Blocks 11 and 12. Do not obliterate other information in these blocks.

(12) Block 12—Payment will be made by/ code. Enter the code and address of the payment office cited in the contract.

(13) Block 13—Shipped to/code. Enter the code and address from the contract or shipping instructions.

(14) Block 14—Marked for/code. Enter the code and address from the contract or shipping instructions. When three-character project codes are provided in the contract or shipping instructions, enter the code in the body of the block, prefixed by ‘‘Proj’’; do not enter in the Code block.

(15) Block 15—Item No. See paragraph F– 301(b)(14) with the exception to F301(b)(2)(B)2 that line item numbers not in accordance with the Uniform Contract Line Item Numbering System may be entered without regard to positioning.

(16) Block 16—Stock/part No./description.

(i) Use single or double spacing between line items when there are less than four line items. Use double spacing when there are four or more line items. Enter the following for each line item:

(A) The national stock number (NSN) or noncatalog number. Where applicable, include a prefix or suffix. If a number is not provided, or it is necessary to supplement the number, include other identification such as the manufacturer’s name or Federal supply code (as published in Cataloging Handbook H4–1), and the part number. Show additional part numbers in parentheses or slashes. Show the descriptive noun of the item nomenclature and if provided, the Government assigned management/material control code. The contractor may use the following technique in the case of equal kind supply items. The first entry shall be the description without regard to kind. For example, ‘‘Shoe-Low Quarter-Black,’’ ‘‘Resistor,’’ ‘‘Vacuum Tube,’’ etc. Below this description, enter the contract line item number in Block 15 and Stock/Part number followed by the size or type in Block 16.

(B) On the next printing line, if required by the contract for control purposes, enter: The make, model, serial number, lot, batch, hazard indicator, or similar description.

(C) On the next printing lines enter—

(1) The MIPR number prefixed by ‘‘MIPR’’ or the MILSTRIP requisition number(s) when provided in the contract; or

(2) Shipping instructions followed on the same line (when more than one requisition is entered) by the unit for payment and the quantity shipped against each requisition. Example: V04696–185–750XY19059A—EA 5 N0018801776038XY3211BA—EA 200 AT650803050051AAT6391J—EA 1000

(D) When a TCN is assigned for each line item, enter on the next line the transportation control number prefixed by ‘‘TCN.’’

(ii) For service line items, enter the word ‘‘SERVICE’’ followed by as short a description as is possible in no more than 20 additional characters. Some examples of service line items are maintenance, repair, alteration, rehabilitation, engineering, research, development, training, and testing. Do not complete Blocks 4, 13, and 14 when there is no shipment of material.

(iii) For all contracts administered by the Defense Contract Management Agency, with the exception of fast pay procedures, enter and complete the following: Gross Shipping Wt. State weight in pounds only.

(iv) Starting with the next line, enter the following as appropriate (entries may be extended through Block 20). When entries apply to more than one line item in the MIRR, enter them only once after the last line item entry. Reference applicable line item numbers.

(A) Enter in capital letters any special handling instructions/limits for material environmental control, such as temperature, humidity, aging, freezing, shock, etc.

(B) When a shipment is chargeable to Navy appropriation 17X4911, enter the appropriation, bureau control number (BCN), and authorization accounting activity (AAA) number (e.g., 17X4911–14003–104).

(C) When the Navy transaction type code (TC), ‘‘2T’’ or ‘‘7T’’ is included in the appropriation data, enter ‘‘TC 2T’’ or ‘‘TC 7T.’’

(D) When an NSN is required by but not cited in a contract and has not been furnished by the Government, the contractor may make shipment without the NSN at the direction of the contracting officer. Enter the authority for such shipment.

(E) When Government furnished property (GFP) is included with or incorporated into the line item, enter the letters ‘‘GFP.’’

(F) When shipment consists of replacements for supplies previously furnished, enter in capital letters ‘‘REPLACEMENT SHIPMENT.’’ (See F–401, Block 17, for replacement indicators.)

(G) On shipments of Government furnished aeronautical equipment (GFAE) under Air Force contracts, enter the assignment AERNO control number, e.g., ‘‘AERNO 60–6354.’’

(H) For items shipped with missing components, enter and complete the following:

‘‘Item(s) shipped short of the following component(s):

NSN or comparable identification llll, Quantity llll, Estimated Value llll, Authority llll’’

(I) When shipment is made of components which were short on a prior shipment, enter and complete the following:

‘‘These components were listed as shortages on shipment number llll, date shipped llll’’

(J) When shipments involve drums, cylinders, reels, containers, skids, etc., designated as returnable under contract provisions, enter and complete the following:

‘‘Return to llll, Quantity llll, Item llll, Ownership (Government/ contractor).’’

(K) Enter the total number of shipping containers, the type of containers, and the container number(s) assigned for the shipment.

(L) On foreign military sales (FMS) shipments, enter the special markings, and FMS case identifier from the contract. Also enter the gross weight.

(M) When test/evaluation results are a condition of acceptance and are not available prior to shipment, the following note shall be entered if the shipment is approved by the contracting officer:

‘‘Note: Acceptance and payment are contingent upon receipt of approved test/ evaluation results.’’

The contracting officer will advise—

(1) The consignee of the results (approval/ disapproval); and

(2) The contractor to withhold invoicing pending attachment of the approved test/ evaluation results.

(N) The copy of the DD Form 250 required to support payment for destination acceptance (top copy of those with shipment) or ARP origin acceptance shall be identified as follows: enter ‘‘PAYMENT COPY’’ in approximately one-half inch outline type style letters with ‘‘FORWARD TO BLOCK 12 ADDRESS’’ in approximately one-quarter inch letters immediately below. Do not obliterate any other entries.

(O) For clothing and textile contracts containing a bailment clause, enter the words ‘‘GFP UNIT VALUE.’’

(P) When the initial unit incorporating an approved value engineering change proposal (VECP) is shipped, enter the following statement:

This is the initial unit delivered which incorporates VECP No. llll, Contract Modification No. llll, dated llll

(17) Block 17—Quantity shipped/received.

(i) Enter the quantity shipped, using the unit of measure in the contract for payment. When a second unit of measure is used for purposes other than payment, enter the appropriate quantity directly below in parentheses.

(ii) On the final shipment of a line item of a contract containing a clause permitting a variation of quantity and an underrun condition exists, the prime contractor shall enter a ‘‘Z’’ below the last digit of the quantity. Where the final shipment is from other than the prime contractor’s plant and an underrun condition exists, the prime contractor may elect either to—

(A) Direct the subcontractor making the final shipment to enter a ‘‘Z’’ below the quantity; or

(B) Upon determination that all subcontractors have completed their shipments, correct the DD Form 250 (see F–405) coving the final shipment of the line item from the prime contractor’s plant by addition of a ‘‘Z’’ below the quantity. Do not use the ‘‘Z’’ on deliveries which equal or exceed the contract line item quantity.

(iii) For replacement shipments, enter ‘‘A’’ below the last digit of the quantity, to designate first replacement, ‘‘B’’ for second replacement, etc. Do not use the final shipment indicator ‘‘Z’’ on underrun deliveries when a final line item shipment is replaced.

17. QUANTITY

SHIP/REC’D

1000

(10)

Z

(iv) If the quantity received is the same quantity shipped and all items are in apparent good condition, enter by a check mark. If different, enter actual quantity received in apparent good condition below quantity shipped and circle. The receiving activity will annotate the DD Form 250 stating the reason for the difference.

(18) Block 18—Unit. Enter the abbreviation of the unit measure as indicated in the contract for payment. Where a second unit of measure is indicated in the contract for purposes other than payment or used for shipping purposes, enter the second unit of measure directly below in parentheses. Authorized abbreviations are listed in MIL– STD–129, Marking for Shipping and Storage. For example, LB for pound, SH for sheet.

18. UNIT

LB

(SH)

(19) Block 19—Unit price. The contractor may, at its option, enter unit prices on all MIRR copies, except as a minimum:

(i) The contractor shall enter unit prices on all MIRR copies for each item of property fabricated or acquired for the Government and delivered to a contractor as Government furnished property (GFP). Get the unit price from Section B of the contract. If the unit price is not available, use an estimate. The estimated price should be the contractor’s estimate of what the items will cost the Government. When the price is estimated, enter an ‘‘E’’ after the unit price.

(ii) Use the procedures in F–406 when the MIRR is used as an invoice.

(iii) For clothing and textile contracts containing a bailment clause, enter the cited Government furnished property unit value opposite ‘‘GFP UNIT VALUE’’ entry in Block

16.

(iv) Price all copies of DD Forms 250 for FMS shipments with actual prices, if available. If actual price are not available, use estimated prices. When the price is estimated, enter an ‘‘E’’ after the price.

(20) Block 20—AMOUNT. Enter the extended amount when the unit price is entered in Block 19.

(21) Block 21—Contract quality assurance (CQA).

(i) The words ‘‘conform to contract’’ contained in the printed statements in Blocks 21a and 21b relate to quality and to the quantity of the items on the report. Do not modify the statements. Enter notes taking exception in Block 16 or on attached supporting documents with an appropriate block cross-reference.

(ii) When a shipment is authorized under alternative release procedure, attach or include the appropriate contractor signed certificate on the top copy of the DD Form 250 copies distributed to the payment office or attach or include the appropriate contractor certificate on the contract administration office copy when contract administration (Block 10 of the DD Form 250) is performed by the Defense Contract Management Agency.

(iii) When contract terms provide for use of Certificate of Conformance and shipment is made under these terms, the contractor shall enter in capital letters ‘‘CERTIFICATE OF CONFORMANCE’’ in Block 21a on the next line following the CQA and acceptance statements. Attach or include the appropriate contractor signed certificate on the top copy of the DD Form 250 copies distributed to the payment office or attach or include the appropriate certificate on the contract administration office copy when contract administration (Block 10 of the DD Form 250) is performed by the Defense Contract Management Agency. In addition, attach a copy of the signed certificate to, or enter on, copies of the MIRR sent with shipment.

(iv) Origin.

(A) The authorized Government representative must—

(1) Place an ‘‘X’’ in the appropriate CQA and/or acceptance box(es) to show origin CQA and/or acceptance. When the contract requires CQA at destination in addition to origin CQA, enter an asterisk at the end of the statement and an explanatory note in Block 16;

(2) Sign and date;

(3) Enter the typed, stamped, or printed name, title, mailing address, and commercial telephone number.

(B) When alternative release procedures apply—

(1) The contractor or subcontractor shall complete the entries required under paragraph (A) and enter in capital letters ‘‘ALTERNATIVE RELEASE PROCEDURE’’ on the next line following the printed CQA/ acceptance statement.

(2) When acceptance is at origin and contract administration is performed by an office other than the Defense Contract Management Agency, the contractor shall furnish the four payment office copies of the MIRR to the authorized Government representative for dating and signing of one copy and forwarding of all copies to the payment office.

(3) When acceptance is at origin and contract administration is performed by the Defense Contract Management Agency, furnish the contract administration office copy of the MIRR to the authorized Government representative for dating and signing and forwarding to the contract administration office (see F–501, Table 1).

(C) When fast pay procedures apply, the contractor or subcontractor shall enter in capital letters ‘‘FAST PAY’’ on the next line following the printed CQA/acceptance statement. When CQA is required, the authorized Government representative shall execute the block as required by paragraph (A).

(D) When Certificate of Conformance procedures apply, inspection or inspection and acceptance are at source, and the contractor’s Certificate of Conformance is required, the contractor shall enter in capital letters ‘‘CERTIFICATE OF CONFORMANCE’’ as required by paragraph (b)(21)(iii) of this appendix.

(1) For contracts administered by an office other than the Defense Contract Management Agency, furnish the four payment office copies of the MIRR to the authorized Government representative for dating and signing of one copy, and forwarding of all copies to the payment office.

(2) For contracts administered by the Defense Contract Management Agency, furnish the contract administration office copy of the MIRR to the authorized Government representative for dating and signing and forwarding to the contract administration office (see F–401, Table 1).

(3) When acceptance is at destination, no entry shall be made other than ‘‘CERTIFICATE OF CONFORMANCE.’’

(v) Destination.

(A) When acceptance at origin is indicated in Block 21a, make no entries in Block 21b.

(B) When CQA and acceptance or acceptance is at destination, the authorized Government representative must—

(1) Place an ‘‘X’’ in the appropriate box(es);

(2) Sign and date; and

(3) Enter typed, stamped, or printed name, title, mailing address, and commercial telephone number.

(C) When ‘‘ALTERNATIVE RELEASE PROCEDURE’’ is entered in Block 21a and acceptance is at destination, the authorized Government representative must complete the entries required by paragraph (b)(21)(v)(B) of this appendix.

(D) Forward the executed payment copy or MILSCAP format identifier PKN or PKP to the payment office cited in Block 12 within four work days (five days when MILSCAP Format is used) after delivery and acceptance of the shipment by the receiving activity. Forward one executed copy of the final DD Form 250 to the contract administration office cited in Block 10 for implementing contract closeout procedures.

(E) When ‘‘FAST PAY’’ is entered in Block 21a, make no entries in this block.

(22) Block 22—Receiver’s use. The authorized representative of the receiving activity (Government or contractor) must use this block to show receipt, quantity, and condition. The authorized representative must—

(i) Enter the date the supplies arrived. For example, when off-loading or in-checking occurs subsequent to the day of arrival of the carrier at the installation, the date of the carrier’s arrival is the date received for purposes of this block;

(ii) Sign; and

(iii) Enter typed, stamped, or printed name, title, mailing address, and commercial telephone number.

(23) Block 23—Contractor use only. Self explanatory.

F–402 Mode/method of shipment codes.

See paragraph F–302.

F–403 Consolidated shipments.

When individual shipments are held at the contractor’s plant for authorized transportation consolidation to a single bill of lading, the contractor may prepare the DD Forms 250 at the time of CQA or acceptance prior to the time of actual shipment (see Block 3).

F–404 Multiple consignee instructions.

The contractor may prepare one MIRR when the identical line item(s) of a contract are to be shipped to more than one consignee, with the same or varying quantities, and the shipment requires origin acceptance. Prepare the MIRR using the procedures in this appendix with the following changes:

(a) Blocks 2, 4, 13, and, if applicable, 14— Enter ‘‘See Attached Distribution List.’’

(b) Block 15—The contractor may group item numbers for identical stock/part number and description.

(c) Block 17—Enter the ‘‘total’’ quantity shipped by line item or, if applicable, grouped identical line items.

(d) Use the DD Form 250c to list each individual ‘‘Shipped To’’ and ‘‘Marked For’’ with—

(1) Code(s) and complete shipping address and a sequential shipment number for each;

(2) Line item number(s);

(3) Quantity;

(4) MIPR number(s), preceded by ‘‘MIPR,’’ or the MILSTRIP requisition number, and quantity for each when provided in the contract or shipping instructions; and

(5) If applicable, bill of lading number, TCN, and mode of shipment code.

(e) The contractor may omit those distribution list pages of the DD Form 250c that are not applicable to the consignee. Provide a complete MIRR for all other distribution.

F–405 Correction instructions.

Make a new revised MIRR or correct the original when, because of errors or omissions, it is necessary to correct the MIRR after distribution has been made. Use data identical to that of the original MIRR. Do not correct MIRRs for Blocks 19 and 20 entries. Make the corrections as follows—

(a) Circle the error and place the corrected information in the same block; if space is limited, enter the corrected information in Block 16 referencing the error page and block. Enter omissions in Block 16 referencing omission page and block. For

16. STOCK/PART NO. DESCRIPTION CORRECTIONS:

Refer Block 2: Change shipment No. AAA001 to AAA0010 on all pages of the MIRR.

Refer Blocks 15, 16, 17, and 18, page 2: Delete in entirety Line Item No. 0006. This item was not shipped.

(b) When corrections have been made to entries for line items (Block 15) or quantity (Block 17), enter the words ‘‘CORRECTIONS HAVE BEEN VERIFIED’’ on page 1. The authorized Government representative will date and sign immediately below the statement. This verification statement and signature are not required for other corrections.

(c) Clearly mark the pages of the MIRR requiring correction with the words ‘‘CORRECTED COPY.’’ Avoid obliterating any other entries. Where corrections are

made only on continuation sheets, also mark all invoice submissions; and three copies: except for the copies required to accompany page number 1 with the words ‘‘CORRECTED ‘‘INVOICE COPY,’’ when the payment office shipment. COPY.

(d) Page 1 and only those continuation AND pages marked ‘‘CORRECTED COPY’’ shall be distributed to the initial distribution. A complete MIRR with corrections shall be distributed to new addressee(s) created by error corrections.

F–406 Invoice instructions.

(a) Contractors shall submit payment requests and receiving reports in electronic form, unless an exception in DFARS 232.7002 applies. Contractor submission of the material inspection and receiving information required by this appendix by using the WAWF electronic form (see paragraph (b) of the clause at DFARS 252.232–7003) fulfills the requirement for an MIRR.

(b) If the contracting officer authorizes the contractor to submit an invoice in paper form, the Government encourages, but does not require, the contractor to use the MIRR as an invoice, in lieu of a commercial form. If commercial forms are used, identify the related MIRR shipment number(s) on the form. If using the MIRR as an invoice, prepare the MIRR and forward the required number of copies to the payment office as follows:

(1) Complete Blocks 5, 6, 19, and 20. Block 6 shall contain the invoice number and date. Column 20 shall be totaled.

(2) Mark in letters approximately one inch high, first copy: ‘‘ORIGINAL INVOICE,’’ for all invoice submissions; and three copies: ‘‘INVOICE COPY,’’ when the payment office requires four copies. Questions regarding the appropriate number of copies (i.e., one or four) should be directed to the applicable payment office.

(3) Forward the appropriate number of copies to the payment office (Block 12 address), except when acceptance is at destination and a Navy finance office will make payment, forward to destination.

(4) Separate the copies of the MIRR used as an invoice from the copies of the MIRR used as a receiving report. F–407 Packing list instructions. Contractors may use copies of the MIRR as a packing list. The packing list copies are in addition to the copies of the MIRR required for standard distribution (see F–501). Mark them ‘‘PACKING LIST.’’

F–408 Receiving instructions.

When the MIRR is used for receiving purposes, local directives shall prescribe procedures. If CQA and acceptance or acceptance of supplies is required upon arrival at destination, see F–401(b)(21)(v) for instructions.

PART 5—Distribution of Wide Area Workflow Receiving Report (WAWF RR), DD Form 250 and DD Form 250C

F–501 Distribution of WAWF RR.

Use of the WAWF electronic form satisfies the distribution requirements of this section, except for the copies required to accompany shipment.

F-502 Distribution of DD FORM 250 AND DD FORM 250C.

(a) The contractor is responsible for distributing the DD Form 250, Material Inspection and Receiving Report (MIRR) including mailing and payment of postage.

(b) Contractors shall distribute MIRRs using the instructions in Tables 1 and 2.

(c) Contractors shall distribute MIRRs on non-DoD contracts using this appendix as amended by the contract.

(d) Contractors shall make distribution promptly, but no later than the close of business of the work day following—

(1) Signing of the DD Form 250 (Block 21a) by the authorized Government representative; or

(2) Shipment when authorized under terms of alternative release, certificate of conformance, or fast pay procedures; or

(3) Shipment when CQA and acceptance are to be performed at destination.

(e) Do not send the consignee copies (via mail) on overseas shipments to port of embarkation (POE). Send them to consignee at APO/FPO address.

(f) Copies of the MIRR forwarded to a location for more than one recipient shall clearly identify each recipient.

Material Inspection And Receiving Report

TABLE 1—STANDARD DISTRIBUTION

With Shipment*.............................................................................................................................. 2

Consignee (via mail)....................................................................................................................... 1

(For Navy procurement, include unit price)

(For foreign military sales, consignee copies are not required)

Contract Administration Office (CAO) ......................................................................................... 1

(Forward direct to address in Block 10 except when addressee is a Defense Contract Management Agency (DCMA) office and a certificate of conformance or the alternative release procedures (see F–301, Block 21) is involved, and acceptance is at origin; then, forward through the authorized Government representative.)

Purchasing Office ........................................................................................................................... 1

Payment Office ** ......................................................................................................................... 1

(Forward direct to address in Block 12 except—

(i) When address in Block 10 is a DCMA office and payment office in Block 12 is the Defense Finance and Accounting Service, Columbus Center, do not make distribution to the Block 12 addressee;

(ii) When address in Block 12 is the Defense Finance and Accounting Service, Columbus Center/Albuquerque Office (DFAS–CO/ALQ), Kirtland AFB, NM, attach only one copy to the required number of copies of the contractor’s invoice;

(iii) When acceptance is at destination and a Navy finance office will make payment, forward to destination; and

(iv) When a certificate of conformance or the alternative release procedures (see F–301, Block 21) are involved and acceptance is at origin, forward the copies through the authorized Government representative.

ADP Point for CAO (applicable to Air Force only) .............................................................. 1

(When DFAS–CO/ALQ is the payment office in Block 12, send one copy to DFAS–CO/ALQ immediately after signature. If submission of delivery data is made electronically, distribution of this hard copy need not be made to DFAS–CO/ALQ.)

CAO of Contractor Receiving GFP ....................................................................................... 1

(For items fabricated or acquired for the Government and shipped to a contractor as Government furnished property, send one copy directly to the CAO cognizant of the receiving contractor, ATTN: Property Administrator (see DoD 4105.59–H).)

* Attach as follows:

** Payment by Defense Finance and Accounting Service, Columbus Center will be based on the source acceptance copies of DD Forms 250 forwarded to the contract administration office.

Type of shipment

Location

Carload or truckload

Affix to the shipment where it will be readily visible and available upon receipt.

Less than carload or truckload

Affix to container number one or container truckload bearing lowest number.

Mail, including parcel post

Attach to outside or include in the package. Include a copy in each additional package of multi-package shipments.

Pieline, tank car, or railroad cars for coal movements

Forward with consignee copies.

MATERIAL INSPECTION AND RECEIVING REPORT TABLE 2—SPECIAL DISTRIBUTION

As required

Address

Number of copies

Each: Navy Status Control Activity, Army, Air Force, DLA Inventory Control Manager.

Address specified in contract

*1

Quality Assurance Representative -

Address specified by the assigned quality assurance representative

1

Transportation Office issuing GBL (attach to GBL memorandum copy

CAO address unless otherwise specified in the contract

1

Purchasing Office other than office issuing contract ................

Address specified in the contract

1

Foreign Military Sales Representative

Address specified in the contract

8

Military Assistance Advisory Group (Grant Aid shipments)

U.S. Military Advisory Group, Military Attache, Mission, or other designated agency address as specified in the contract.

1

Army Foreign Military Sales

Commander, U.S. Army Security Assistance Command, 1 ATTN: AMSAC–OL, 54 ‘‘M’’ Avenue, Suite 1, New Cumberland, PA 17070–5096

1

Air Force On shipments of new production of aircraft and missiles, class 1410 missiles, 1510 aircraft (fixed wing, all types), 1520 aircraft (rotary wing), 1540 gliders, 1550 target drones.

HQ Air Force Materiel Command, LGX–AVDO, Area A, Building 262, Room N142, 4375 Chidlaw Road, Wright- Patterson AFB, OH 45433–5006.

1

When above items are delivered to aircraft modification cen ters.

DCMA

1

Foreign Military Sales/Military Assistance Program (Grant Aid) shipments to Canada.

National Defence Headquarters, Ottawa, Ontario Canada, K1A OK4 ATTN: DPSUPS3.

1

Other than Canada

Address in the contract

1

When consignee is an Air National Guard Activity Navy

Consignee address (Block 13), ATTN: Property Officer

3

Navy Foreign Military Sales

Naval Inventory Control Point Deputy Commander for International Programs (NAVICP Code P761), 700 Robbins Avenue, Philadelphia, PA 19111–5095.

2

When typed code (TC) 2T or 7T is shown in Block 16, or when shipment is consigned to another contractor’s plant for a Government representative or when Block 16 indicates shipment includes GFP.

Naval Inventory Control Point (Code 0142) for aviation type material, 700 Robbins Avenue, Philadelphia, PA 19111–5098 and.
Naval Inventory Control Point (Code 0143) for all other material 5450 Carlisle Pike, PO Box 2020, Mechanicsburg, PA 17055–0788.

2

Bulk Petroleum Shipments

Cognizant Defense Fuel Region (see Table 4)

1

* Each addressee.

Part 6—Preparation of the DD Form 250–1 (Loading Report)

F–601 Instructions.

Prepare the DD Form 250–1 using the following instructions when applied to a tanker or barge cargo lifting. If space is limited, use abbreviations. The block numbers correspond to those on the form.

(a) Block 1—Tanker/barge. Line out ‘‘TANKER’’ or ‘‘BARGE’’ as appropriate and place an ‘‘X’’ to indicate loading report.

(b) Block 2—Inspection office. Enter the name and location of the Government office conducting the inspection.

(c) Block 3—Report No. Number each form consecutively, starting with number 1, to correspond to the number of shipments made against the contract. If shipment is made from more than one location against the same contract, use this numbering system at each location.

(d) Block 4—Agency placing order on shipper, city, state and/or local address (loading). Enter the applicable Government activity.

(e) Block 5—Department. Enter military department owning product being shipped.

(f) Block 6—Prime contract or P.O. No. Enter the contract or purchase order number.

(g) Block 7—Name of prime contractor, city, state and/or local address (loading). Enter the name and address of the contractor as shown in the contract.

(h) Block 8—Storage contract. Enter storage contract number if applicable.

(i) Block 9—Terminal or refinery shipped from, city, state and/or local address. Enter the name and location of the contractor facility from which shipment is made. Also enter delivery point in this space as either ‘‘FOB Origin’’ or ‘‘FOB Destination.’’

(j) Block 10—Order No. on supplier. Enter number of the delivery order, purchase order, subcontract or suborder placed on the supplier.

(k) Block 11—Shipped to: (receiving activity, city, state and/or local address). Enter the name and geographical address of the consignee as shown on the shipping order.

(l) Block 12—B/L number. If applicable, enter the initials and number of the bill of lading. If a commercial bill of lading is later authorized to be converted to a Government bill of lading, show ‘‘Com. B/L to GB/L.’’

(m) Block 13—Reqn. or request No. Enter number and date from the shipping instructions.

(n) Block 14—Cargo No. Enter the cargo number furnished by the ordering office.

(o) Block 15—Vessel. Enter the name of tanker or barge.

(p) Block 16—Draft arrival. Enter the vessel’s draft on arrival.

(q) Block 17—Draft sailing. Enter the vessel’s draft on completion of loading.

(r) Block 18—Previous two cargoes. Enter the type of product constituting previous two cargoes.

(s) Block 19—Prior inspection. Leave blank.

(t) Block 20—Condition of shore pipeline. Enter condition of line (full or empty) before and after loading.

(u) Block 21—Appropriation (loading). Enter the appropriation number shown on the contract, purchase order or distribution plan. If the shipment is made from departmentally owned stock, show ‘‘Army, Navy, or Air Force (as appropriate) owned stock.’’

(v) Block 22—Contract item no. Enter the contract item number applicable to the shipment.

(w) Block 23—Product. Enter the product nomenclature and grade as shown in the contract or specification, the stock or class number, and the NATO symbol.

(x) Block 24—Specifications. Enter the specification and amendment number shown in the contract.

(y) Block 25—Statement of quantity. Enter in the ‘‘LOADED’’ column, the net barrels, net gallons, and long tons for the cargo loaded. NOTE: If more than 1⁄2 of 1 percent difference exists between the ship and shore quantity figures, the contractor shall immediately investigate to determine the cause of the difference. If necessary, prepare corrected documents; otherwise, put a statement in Block 28 as to the probable or actual cause of the difference.

(z) Block 26—Statement of quality.

(1) Under the heading ‘‘TESTS’’ list all inspection acceptance tests of the specification and any other quality requirements of the contract.

(2) Under the heading ‘‘SPECIFICATION LIMITS’’ list the limits or requirements as stated in the specification or contract directly opposite each entry in the ‘‘TESTS’’ column. List waivers to technical requirements.

(3) Under the heading ‘‘TEST RESULTS’’ list the test results applicable to the storage tank or tanks from which the cargo was lifted. If more than one storage tank is involved, list the tests applicable to each tank in separate columns headed by the tank number, the date the product in the tank was approved, and the quantity loaded from the tank. Each column shall also list such product characteristics as amount and type of corrosion inhibitor, etc.

(aa) Block 27—Time statement. Line out ‘‘DISCHARGE’’ and ‘‘DISCHARGING.’’ Complete all applicable entries of the time statement using local time. Take these dates and times from either the vessel or shore facility log. The Government representative shall ensure that the logs are in agreement on those entries used. If the vessel and shore facility logs are not in agreement, the Government representative will explain the reasons in Block 28—REMARKS. Do not enter the date and time the vessel left berth on documents placed aboard the vessel. The date and time shall appear on all other copies. Express all dates in sequence of day, month, and year with the month spelled out or abbreviated (e.g., 10 Sept. 67). The term FINISHED BALLAST DISCHARGE is meant to include all times needed to complete deballasting and mopping/drying of ship’s tanks. The inspection of ship’s tanks for loading is normally performed immediately upon completion of drying tanks.

(bb) Block 28—Remarks. Use this space for reporting:

(1) All delays, their cause and responsible party (vessel, shore facility, Government representative, or other).

(2) Details of loading abnormalities such as product losses due to overflow, leaks, delivery of product from low level in shore tanks, etc.

(3) In the case of multiple consignees, enter each consignee, the amount consigned to each, and if applicable, the storage contract numbers appearing on the delivery order.

(4) When product title is vested in the U.S. Government, insert in capital letters ‘‘U.S. GOVERNMENT OWNED CARGO.’’ If title to the product remains with the contractor and inspection is performed at source with acceptance at destination, insert in capital letters ‘‘CONTRACTOR OWNED CARGO.’’

(5) Seal numbers and location of seals. If space is not adequate, place this information on the ullage report or an attached supplemental sheet.

(cc) Block 29—Company or receiving terminal. Line out ‘‘OR RECEIVING TERMINAL’’ and get the signature of the supplier’s representative.

(dd) Block 30—Certification by government representative. Line out ‘‘discharged.’’ The Government representative shall date and sign the form to certify inspection and acceptance, as applicable, by the Government. The name of the individual signing this certification, as well as the names applied in Blocks 29 and 31, shall be typed or hand lettered. The signature in Block 30 must agree with the typed or lettered name to be acceptable to the paying office.

(ee) Block 31—Certification by master or agent. Obtain the signature of the master of the vessel or its agent.

Part 7—Preparation of the DD Form 250–1 (Discharge Report)

F–701 Instructions.

Prepare the DD Form 250–1 using the following instructions when applied to a tanker or barge discharge. If space is limited, use abbreviations. The block numbers correspond to those on the form.

(a) Block 1—Tanker/barge. Line out ‘‘TANKER’’ or ‘‘BARGE’’ as applicable and place an ‘‘X’’ to enter discharge report.

(b) Block 2—Inspection office. Enter Government activity performing inspection on the cargo received.

(c) Block 3—Report No. Leave blank.

(d) Block 4—Agency placing order on shipper, city, state and/or local address (loading). Enter Government agency shown on loading report.

(e) Block 5—Department. Enter Department owning product being received.

(f) Block 6—Prime contract or P.O. No. Enter the contract or purchase order number shown on the loading report.

(g) Block 7—Name of prime contractor, city, state and/or local address (loading). Enter the name and location of contractor who loaded the cargo.

(h) Block 8—Storage contract. Enter the number of the contract under which material is placed in commercial storage where applicable.

(i) Block 9—Terminal or refinery shipped from, city, state and/or local address. Enter source of cargo.

(j) Block 10—Order No. on supplier. Make same entry appearing on loading report.

(k) Block 11—Shipped to: (RECEIVING ACTIVITY, CITY, STATE AND/OR LOCAL ADDRESS). Enter receiving activity’s name and location.

(l) Block 12—B/L number. Enter as appears on loading report.

(m) Block 13—Reqn. or request No. Leave blank.

(n) Block 14—Cargo No. Enter cargo number shown on loading report.

(o) Block 15—Vessel. Enter name of tanker or barge discharging cargo.

(p) Block 16—Draft arrival. Enter draft of vessel upon arrival at dock.

(q) Block 17—Draft sailing. Enter draft of vessel after discharging.

(r) Block 18—Previous two cargoes. Leave blank.

(s) Block 19—Prior inspection. Enter the name and location of the Government office which inspected the cargo loading.

(t) Block 20—Condition of shore pipeline. Enter condition of line (full or empty) before and after discharging.

(u) Block 21—Appropriation (loading). Leave blank.

(v) Block 22—Contract item No. Enter the item number shown on the loading report.

(w) Block 23—Product. Enter information appearing in Block 23 of the loading report.

(x) Block 24—Specifications. Enter information appearing in Block 24 of the loading report.

(y) Block 25—Statement of quantity. Enter applicable data in proper columns.

(1) Take ‘‘LOADED’’ figures from the loading report.

(2) Determine quantities discharged from shore tank gauges at destination.

(3) If a grade of product is discharged at more than one point, calculate the loss or gain for that product by the final discharge point. Report amounts previously discharged on discharge reports prepared by the previous discharge points. Transmit volume figures by routine message to the final discharge point in advance of mailed documents to expedite the loss or gain calculation and provide proration data when more than one department is involved.

(4) The loss or gain percentage shall be entered in the ‘‘PERCENT’’ column followed by ‘‘LOSS’’ or ‘‘GAIN,’’ as applicable.

(5) On destination acceptance shipments, accomplish the ‘‘DISCHARGED’’ column only, unless instructed to the contrary.

(z) Block 26—Statement of quality.

(1) Under the heading ‘‘TESTS’’ enter the verification tests performed on the cargo preparatory to discharge.

(2) Under ‘‘SPECIFICATION LIMITS’’ enter the limits, including authorized departures (if any) appearing on the loading report, for the tests performed.

(3) Enter the results of tests performed under the heading ‘‘TEST RESULTS.’’

(aa) Block 27—Time statement. Line out ‘‘LOAD’’ and ‘‘LOADING.’’ Complete all applicable entries of the time statement using local time. Take the dates and times from either the vessel or shore facility log. The Government representative shall ensure that these logs are in agreement with entries used. If the vessel and shore facility logs are not in agreement, the Government representative will explain the reason(s) in Block 28— REMARKS. Do not enter the date and time the vessel left berth on documents placed aboard the vessel. The date and time shall

appear on all other copies. Express all dates in sequence of day, month, and year with the month spelled out or abbreviated (e.g., 10 Sept. 67).

(bb) Block 28—Remarks. Use this space for reporting important facts such as:

(1) Delays, their cause, and responsible party (vessel, shore facility, Government representative, or others).

(2) Abnormal individual losses contributing to the total loss. Enter the cause of such losses as well as actual or estimated volumes involved. Such losses shall include, but not be restricted to, product remaining aboard (enter tanks in which contained), spillages, line breaks, etc. Note where gravity group change of receiving tank contents results in a fictitious loss or gain. Note irregularities observed on comparing vessel ullages obtained at loading point with those at the discharge point if they indicate an abnormal transportation loss or contamination.

(cc) Block 29—Company or receiving terminal. Line out ‘‘COMPANY OR.’’ Secure the signature of a representative of the receiving terminal.

(dd) Block 30—Certification by government representative. Line out ‘‘loaded.’’ The Government representative shall date and sign the form to certify inspection and acceptance, as applicable, by the Government. The name of the individual signing the certification as well as the names applied in Blocks 29 and 31 shall be typed or hand lettered on the master or all copies of the form. The signature in Block 30 must agree with the typed or lettered name to be acceptable to the paying office.

(ee) Block 31—Certification by master or agent. Obtain the signature of the master of the vessel or the vessel’s agent.

Part 8—Distribution of the DD Form 250–1

F–801 Distribution.

Follow the procedures at PGI F–801 for distribution of DD Form 250–1.

F–802 Corrected DD Form 250–1.

Follow the procedures at PGI F–802 when corrections to DD Form 250–1 are needed.

[FR Doc. 2011–23958 Filed 9–19–11; 8:45 am]

BILLING CODE 5001–08–P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23950]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 201

RIN 0750-AH35

Defense Federal Acquisition Regulation Supplement; Designation of a Contracting Officer's Representative (DFARS Case 2011-D037)

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

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify that a contracting officer's representative must be an employee, military or civilian, of the U.S. Government, a foreign government, or a North Atlantic Treaty Organization (NATO)/coalition partner, and that contractor personnel shall not serve as contracting officer's representatives.

DATES: Effective date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, telephone 703-602-8383.

SUPPLEMENTARY INFORMATION:

I. Background

This rule is based on a request from Headquarters NATO Training Mission--Afghanistan (NTM-A) to permit the designation of non-U.S. Government employees as contracting officer's representatives (CORs) in support of the NTM-A's efforts to train the Afghan National Security Force (ANSF). The NTM-A supports the growth of the ANSF through numerous activities including the contracting of civilian mentoring services. These contracts for mentoring services to the ANSF require the contractor to deploy teams throughout the joint area of operations and interact with non-U.S. coalition partners exclusively. To provide assurance that contractual requirements are being met, it is crucial that contract performance information be submitted to the contracting officer by those coalition units with insight of contractor activities.

Contracting officers supporting contingency operations abroad require the flexibility to ensure the proper oversight of contract performance, such as at locations where there is no U.S. presence or the designation of a U.S. Government COR is not viable. This rule provides that flexibility by clarifying at DFARS 201.602-2 that a COR must be an employee, military or civilian, of the U.S. Government, a foreign government, or a NATO/coalition partner. CORs must meet all training and experience qualifications commensurate with the delegated responsibilities per DFARS 201.602-2(2)(ii). In addition, the rule makes clear that contractor personnel may not serve as CORs. Contractor personnel may, however, continue to perform technical oversight functions on behalf of the contracting officer, excluding those that are inherently governmental (see FAR 7.5). DoD has issued this rule as a final rule because this rule does not have a significant effect beyond the internal operating procedures of DoD and does not have a significant cost or administrative impact on contractors or offerors. Therefore, public comment is not required in accordance with 41 US.C. 1707.

II. Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not 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

The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501, and public comment is not required in accordance with 41. U.S.C. 1707.

IV. Paperwork Reduction Act

The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 201

Government Procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 201 is amended as follows:

PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM

1. The authority citation for 48 CFR part 201 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

2. Section 201.602-2 is amended to revise paragraph (2)(i) to read as follows:

201.602-2 Responsibilities.

* * * * *

(2) * * *

(i) Must be an employee, military or civilian, of the U.S. Government, a foreign government, or a North Atlantic Treaty Organization/coalition partner. In no case shall contractor personnel serve as CORs;

* * * * *

[FR Doc. 2011-23950 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23951]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 201, 209, 212, 215, 219, 232, 237, 243, 252, and Appendix I to Chapter 2

RIN 0750-AG38

Defense Federal Acquisition Regulation Supplement; Positive Law Codification of Title 41 U.S.C. (DFARS Case 2011-D036)

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

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to conform references throughout the DFARS to the new Codification of Title 41, United States Code, ``Public Contracts.''

DATES: Effective date: September 20, 2011.

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

SUPPLEMENTARY INFORMATION:

I. Background

On January 4, 2011, Public Law 111-350 enacted a new codified version of Title 41, United States Code (U.S.C.), entitled ``Public Contracts.'' The purpose of this final rule is to update all references to Title 41 in the DFARS to conform to the recodification.

DoD has issued a final rule because this rule does not have a significant effect beyond the internal operating procedures of DoD and does not have a significant cost or administrative impact on contractors or offerors. Therefore public comment is not required in accordance with 41 U.S.C. 1303.

II. Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not 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

The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501 and public comment is not required in accordance with 41 U.S.C. 1707.

IV. Paperwork Reduction Act

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 201, 209, 212, 215, 219, 232, 237, 243, 252, and Appendix I to Chapter 2

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 201, 209, 212, 215, 219, 232, 237, 243, 252 and appendix I to chapter II are amended as follows:

1. The authority citation for 48 CFR parts 201, 209, 212, 215, 219, 232, 237, 243, 252, and appendix I to chapter II continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM

201.107 [Amended]

2. Amend section 201.107 by--

(a) Removing ``Section'' from the introductory text and adding in its place ``section''; and

(b) Removing ``425'' from the introductory text and adding in its place ``1304''.

201.304 [Amended]

3. Amend section 201.304(2) by--

(a) Removing ``Section'' and adding in its place ``section''; and

(b) Removing ``425'' and adding in its place ``1304''.

PART 209--CONTRACTOR QUALIFICATIONS

209.406-2 [Amended]

4. Amend section 209.406-2(2) by--

(a) Removing ``Section'' and adding in its place ``section'';

(b) Removing ``(Pub. L. 110-181)''; and

(c) Removing ``423(e)(3)(A)(iii)'' and adding in its place ``2105(c)(1)(C)''.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

212.207 [Amended]

5. Amend section 212.207--

(a) In paragraph (b)(i) by removing ``403(12)(E)'' and adding in its place ``103''; and

(b) In paragraph (b)(iii)(A) by removing ``403(12)(F)'' and adding in its place ``103''.

PART 215--CONTRACTING BY NEGOTIATION

6. Revise the heading of section 215.403-1 to read as follows:

215.403-1 Prohibition on obtaining cost or pricing data (10 U.S.C. 2306a and 41 U.S.C. chapter 35).

* * * * *

PART 219--SMALL BUSINESS PROGRAMS

219.703 [Amended]

7. Amend section 219.703(a) introductory text by--

(a) Removing ``46-48'' and adding in its place ``8502-8504''; and

(b) Removing ``Section'' and adding in its place ``section''.

PART 232--CONTRACT FINANCING

232.803 [Amended]

8. Amend section 232.803(d) by removing ``Section 3737(e) of the Revised Statutes (41 U.S.C. 15)'' and adding in its place ``41 U.S.C. 6305''.

PART 237--SERVICE CONTRACTING

237.102-71 [Amended]

9. Amend section 237.102-71(a)(2) by removing ``357(b)'' and adding in its place ``6701''.

PART 243--CONTRACT MODIFICATIONS

243.204-71 [Amended]

10. Amend section 242.204-71(c) by removing ``605(c)'' and adding in its place ``7103''.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

252.203-7000 [Amended]

11. Amend section 252.203-7000 by--

(a) Removing the clause date of ``(JAN 2009)'' and adding in its place ``(SEP 2011)'';

(b) In paragraph (a)(2)(i) introductory text, removing ``403(16)'' and adding in its place ``131''; and

(c) In paragraph (c), removing ``423(e)(3)'' and adding in its place ``2105(c)''.

252.212-7001 [Amended]

12. Amend section 252.212-7001 by--

(a) Removing the clause date of ``(AUG 2011)'' and adding in its place ``(SEP 2011)''; and

(b) In paragraph (b)(2) removing ``Section'' and adding in its place ``section'';

(c) In paragraph (b)(2) removing the word ``note''.

252.219-7003 [Amended]

13. Amend section 252.219-7003 by--

(a) Removing the clause date of ``(OCT 2010)'' and adding in its place ``(SEP 2011)''; and

(b) In paragraph (d), removing ``46-48'' and adding in its place ``8502-8504''.

252.225-7001 [Amended]

14. Amend section 252.225-7001 by--

(a) Removing the clause date of ``(JAN 2009)'' and adding in its place ``(SEP 2011)'';

(b) In paragraph (b), removing ``Section 10a-d'' and adding in its place ``chapter 83''; and

(c) In paragraph (b) removing ``431'' and adding in its place ``1907''.

252.227-7037 [Amended]

15. Amend section 252.227-7037 by--

(a) Removing the clause date ``(SEP 1999)'' and adding in its place ``(SEP 2011)''; and

(b) In paragraph (e)(3), removing ``601, et seq.'' and adding in its place ``7101''.

APPENDIX I TO CHAPTER 2--[Amended]

16. Amend section I-101.4 by removing ``46'' and adding in its place ``8502''.

[FR Doc. 2011-23951 Filed 9-19-11; 8:45 am]

BILLING CODE ;P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23953]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204, 212, and 252

RIN 0750-AH02

Defense Federal Acquisition Regulation Supplement (DFARS); Alternative Line Item Structure (DFARS Case 2010-D017)

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

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to establish a standard procedure for offerors to propose an alternative line item structure that reflects the offeror's business practices for selling and billing commercial items and initial provisioning spares for weapon systems

DATES: Effective Date: September 20, 2011.

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

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register at 76 FR 21847 on April 19, 2011, to add DFARS language that provides offerors the opportunity to propose an alternative line item structure in solicitations for commercial items and initial provisioning spares. This DFARS change will allow offerors to provide information about their products that may not have been known to the Government prior to issuance of the solicitation. No public comments were received regarding the proposed rule.

DoD identified the need to propose an alternative line item structure during process reviews and working group sessions that assessed destination-acceptance procedures. The process reviews performed by DoD cross-service working groups, which were chartered by the Defense Finance and Accounting System, examined issues causing problems in the receipt and acceptance phase for contract deliverables and payments.

This group determined that the level of detail in the requirements description and line item structure is not always sufficient for delivery, payment, and subsequent inventory management of the items delivered. For example, the contract line item may be for a desktop computer, but the actual items delivered, invoiced, and inventoried may reflect a separate monitor, keyboard, and central processing unit. The resultant misalignment of transaction detail (i.e., contract line item, invoiced unit, delivery and inventory unit) is the cause of failures in the electronic processes of the DoD's business enterprise requiring manual intervention with potential delays in contractor payment.

To address this recurring problem, this rule establishes and standardizes a process to enable offerors to propose changes in their offer to the solicitation's line item structure. Establishing such a process is a first step towards managing variation in these transactions by eliminating or reducing manual intervention.

II. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 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 the rule does not impose any additional requirements on small businesses. Further, this change does not add to, or delete from existing requirements or authorities for entities to include alternative line item structures in their offers. This rule is formalizing a process to facilitate offerors' ability to request changes to the line item structure.

IV. Paperwork Reduction Act

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 204, 212, and 252

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 204, 212, and 252 are amended as follows:

1. The authority citation for 48 CFR parts 204, 212, and 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 204--ADMINISTRATIVE MATTERS

2. Amend section 204.7103 by adding a new paragraph (g) to read as follows:

204.7103-1 Criteria for establishing.

* * * * *

(g) Certain commercial items and initial provisioning spares for weapons systems are requested and subsequently solicited using units of measure such as kit, set, or lot. However, there are times when individual items within that kit, set, or lot are not grouped and delivered in a single shipment. This creates potential contract administration issues with inspection, acceptance, and payment. In such cases, solicitations should be structured to allow offerors to provide information about products that may not have been known to the Government prior to solicitation and propose an alternate line item structure as long as the alternate is consistent with the requirements of 204.71, which provides explicit guidance on the use of contract line items and subline items, and with PGI 204.71.

3. Revise section 204.7109 to read as follows:

204.7109 Solicitation provision and contract clause.

(a) Use the clause at 252.204-7006, Billing Instructions, in solicitations and contracts if Section G includes--

(1) Any of the standard payment instructions at PGI 204.7108(d)(1) through (6); or

(2) Other payment instructions, in accordance with PGI 204.7108(d)(12), that require contractor identification of the contract line item(s) on the payment request.

(b) Use the provision at 252.204-7011, Alternative Line Item Structure, in solicitations for commercial items and initial provisioning spares.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

4. Amend section 212.301 by revising paragraph (f)(iv) to read as follows:

212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

(f) * * *

(iv) Use the provisions and clauses prescribed elsewhere in DFARS as follows:

(A) Use the provision at 252.204-7011, Alternative Line Item Structure, as prescribed in 204.7109(b).

(B) Use the provision at 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country, as prescribed in 209.104-70(a).

(C) Use the clause at 252.211-7003, Item Identification and Valuation, as prescribed in 211.274-4.

(D) Use the clause at 252.211-7006, Radio Frequency Identification, as prescribed in 211.275-3.

(E) Use the provision at 252.225-7010, Commercial Derivative Military Article--Specialty Metals Compliance Certificate, as prescribed in 225.7003-5(b).

(F) Use the clause at 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States, as prescribed in 225.7402-4.

(G) Use the clause at 252.225-7043, Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States, in solicitations and contracts that include the clause at 252.225-7040.

(H) Use the clause at 252.232-7009, Mandatory Payment by Governmentwide Commercial Purchase Card, as prescribed in 232.1110.

(I) Use the clause at 252.232-7010, Levies on Contract Payments, as prescribed in 232.7102.

(J) Use the clause at 252.232-7011, Payments in Support of Emergencies and Contingency Operations, as prescribed in 232.908.

(K) Use the clause at 252.246-7003, Notification of Potential Safety Issues, as prescribed in 246.371.

(L) Use the provision at 252.247-7026, Evaluation Preference for Use of Domestic Shipyards--Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as prescribed in 247.574(e).]

(M) Use the clause at 252.247-7027, Riding Gang Member Requirements, as prescribed in 247.574(f).

* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

5. Add section 252.204-7011 to read as follows:

252.204-7011 Alternative Line Item Structure.

As prescribed in 204.7109(b), insert the following provision:

ALTERNATIVE LINE-ITEM STRUCTURE (SEP 2011)

(a) Line items are the basic structural elements in a solicitation or contract that provide for the organization of contract requirements to facilitate pricing, delivery, inspection, acceptance and payment. Line items are organized into contract line items, subline items, and exhibit line items. Separate line items should be established to account for separate pricing, identification (see section 211.274 of the Defense Federal Acquisition Regulation Supplement), deliveries, or funding. The Government recognizes that the line item structure in this solicitation may not conform to every offeror's practices. Failure to correct these issues can result in difficulties in accounting for deliveries and processing payments. Therefore, offerors are invited to propose an alternative line item structure for items on which bids, proposals, or quotes are requested in this solicitation to ensure that the resulting contract structure is economically and administratively advantageous to the Government and the Contractor. (b) If an alternative line item structure is proposed, the structure must be consistent with subpart 204.71 of the Defense Federal Acquisition Regulation Supplement and PGI 204.71. A sample solicitation line-item structure and a corresponding offer of a proposed alternative line-item structure follow.

Solicitation:

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

Item No.Supplies/Service Quantity Unit Unit price Amount

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

0001............................ Computer, Desktop with 20 EA ............ ...........

CPU, Monitor, Keyboard

and Mouse.

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

Alternative line-item structure offer where monitors are shipped separately:

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

Item No.Supplies/Service Quantity Unit Unit Price Amount

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

0001............................ Computer, Desktop with 20 EA ............ ...........

CPU, Keyboard and Mouse.

0002............................ Monitor................. 20 EA ............ ...........

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

(End of provision)

[FR Doc. 2011-23953 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23945]

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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211 and 252

RIN 0750-AH05

Defense Federal Acquisition Regulation Supplement; Passive Radio Frequency Identification (DFARS Case 2010-D014)

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

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update requirements relating to the use of passive radio frequency identification (RFID).

DATES: Effective Date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Dustin Pitsch, telephone 703-602-0289.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal Register at 76 FR 9714 on February 26, 2011, in response to a request of the Office of Logistics and Materiel Readiness of the Office of the Secretary of Defense (Acquisition, Technology, and Logistics) to update requirements relating to the use of passive radio frequency identification (RFID).

II. Discussion and Analysis

DoD received comments from two respondents in response to the proposed rule. One respondent expressed general support for the rule.

Comment: A respondent stated that RFID tags will play an expanded role in inventory management and asset protection for the DoD and expanded use should occur soon.

Response: DoD agrees that RFID use in inventory management is expanding and will continue to expand.

Comment: A respondent stated that RFID tracking is not the current industry standard for inventory management of pharmaceuticals and that adding this requirement would cost the suppliers and DoD a significant amount of time and money to implement. This respondent believes that the current use of 2D barcodes is sufficient for tracking pharmaceuticals and that the DoD should not require the use of passive RFID.

Response: DoD agrees and the final rule does not include a requirement for passive RFID use for pharmaceuticals.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 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 has prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows.

The DFARS previously listed approximately 20 specific DoD activity addresses and provides the authority for using other ship-to locations ``outside the contiguous United States'' under certain circumstances. However, the Defense Logistics Agency and the Navy proposed adding more than 200 additional sites, making it impracticable to list all DoD passive RFID addresses in the DFARS text or its associated clause. Instead, this rule adds a Web site for contractors to find the RFID Identifier for each specific DoD ship-to address that uses RFID technology. Including the Web site in the DFARS has the added benefit of enabling the addition of new ship-to addresses in the future as necessary without the need to revise the DFARS in each case. This final rule amends the revised, shortened list of ship-to addresses at DFARS 211.275-2(a)(2) to allow contracting officers to add tagging requirements to contract deliverables shipping to DoDAACs not specifically included in the list as they deem necessary.

The current OMB information collection justification for the clause associated with the current DFARS, 252.211-7006, entitled ``Radio Frequency Identification,'' lists the number of contractors impacted by the RFID requirement as 25,500. While each contractor has multiple submissions (one for each shipment), it takes only 1.12 seconds per response. The rule changes impact, if any, should decrease the response time and not increase it.

V. Paperwork Reduction Act

There are information collection requirements associated with the use of RFIDs. However, there will be no substantive change to the existing information collection requirements currently approved under OMB Information Control Number 0704-0434, DFARS; Radio Frequency Identification Advance Shipment Notices. Therefore, DoD has determined that the final rule has no material impact on the approved collection.

List of Subjects in 48 CFR Parts 211 and 252

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 211 and 252 are amended as follows:

1. The authority citation for 48 CFR parts 211 and 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 211--DESCRIBING AGENCY NEEDS

2. The section heading for section 211.275 is revised to read as follows:

211.275 Passive radio frequency identification.

211.275-1 [Amended]

3. Section 211.275-1 is amended to add the word ``Passive'' before the phrase ``Radio Frequency Identification''.

4. Section 211.275-2 is amended to--

a. Revise paragraph (a) introductory text; and

b. Revise paragraph (a)(2).

The revisions read as follows:

211.275-2 Policy.

(a) Except as provided in paragraph (b) of this section, radio frequency identification (RFID), in the form of a passive RFID tag, is required for cases and palletized unit loads packaging levels and any additional consolidation level(s) deemed necessary by the requiring activity for shipments of items that--

* * * * *

(2) Will be shipped to one of the locations listed at http://www.acq.osd.mil/log/rfid/ or to--

(i) A location outside the contiguous United States when the shipment has been assigned Transportation Priority 1; or

(ii) Any additional location(s) deemed necessary by the requiring

activity.

* * * * *

5. Section 211.275-3 is revised to read as follows:

211.275-3 Contract clause.

Use the clause at 252.211-7006, Passive Radio Frequency Identification, in solicitations and contracts that will require shipment of items meeting the criteria at 211.275-2, and complete paragraph (b)(1)(ii) of the clause at 252.211-7006 as appropriate.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

6. Section 252.211-7006 is revised to read as follows:

252.211-7006 Passive Radio Frequency Identification.

As prescribed in 211.275-3, use the following clause:

Passive Radio Frequency Identification (SEP 2011)

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

Advance shipment notice means an electronic notification used to list the contents of a shipment of goods as well as additional information relating to the shipment, such as passive radio frequency identification (RFID) or item unique identification (IUID) information, order information, product description, physical characteristics, type of packaging, marking, carrier information, and configuration of goods within the transportation equipment.

Bulk commodities means the following commodities, when shipped in rail tank cars, tanker trucks, trailers, other bulk wheeled conveyances, or pipelines:

(1) Sand.

(2) Gravel.

(3) Bulk liquids (water, chemicals, or petroleum products).

(4) Ready-mix concrete or similar construction materials.

(5) Coal or combustibles such as firewood.

(6) Agricultural products such as seeds, grains, or animal feed. Case means either a MIL-STD-129 defined exterior container within a palletized unit load or a MIL-STD-129 defined individual shipping container.

Electronic Product Code\TM\ (EPC[supreg]) means an identification scheme for universally identifying physical objects via RFID tags and other means. The standardized EPC\TM\ data consists of an EPC\TM\ (or EPC\TM\ identifier) that uniquely identifies an individual object, as well as an optional filter value when judged to be necessary to enable effective and efficient reading of the EPC\TM\ tags. In addition to this standardized data, certain classes of EPC\TM\ tags will allow user-defined data. The EPC\TM\ Tag Data Standards will define the length and position of this data, without defining its content.

EPCglobal[supreg] means a subscriber-driven organization comprised of industry leaders and organizations focused on creating global standards for the adoption of passive RFID technology.

Exterior container means a MIL-STD-129 defined container, bundle, or assembly that is sufficient by reason of material, design, and construction to protect unit packs and intermediate containers and their contents during shipment and storage. It can be a unit pack or a container with a combination of unit packs or intermediate containers. An exterior container may or may not be used as a shipping container.

Palletized unit load means a MIL-STD-129 defined quantity of items, packed or unpacked, arranged on a pallet in a specified manner and secured, strapped, or fastened on the pallet so that the whole palletized load is handled as a single unit. A palletized or skidded load is not considered to be a shipping container. A loaded 463L System pallet is not considered to be a palletized unit load. Refer to the Defense Transportation Regulation, DoD 4500.9-R, Part II, Chapter 203, for marking of 463L System pallets.

Passive RFID tag means a tag that reflects energy from the reader/interrogator or that receives and temporarily stores a small amount of energy from the reader/interrogator signal in order to generate the tag response. The only acceptable tags are EPC Class 1 passive RFID tags that meet the EPCglobal\TM\ Class 1 Generation 2 standard.

Radio frequency identification (RFID) means an automatic identification and data capture technology comprising one or more reader/interrogators and one or more radio frequency transponders in which data transfer is achieved by means of suitably modulated inductive or radiating electromagnetic carriers.

Shipping container means a MIL-STD-129 defined exterior container that meets carrier regulations and is of sufficient strength, by reason of material, design, and construction, to be shipped safely without further packing (e.g., wooden boxes or crates, fiber and metal drums, and corrugated and solid fiberboard boxes).

(b)(1) Except as provided in paragraph (b)(2) of this clause, the Contractor shall affix passive RFID tags, at the case- and palletized- unit-load packaging levels, for shipments of items that--

(i) Are in any of the following classes of supply, as defined in DoD 4140.1-R, DoD Supply Chain Materiel Management Regulation, AP1.1.11:

(A) Subclass of Class I--Packaged operational rations.

(B) Class II--Clothing, individual equipment, tentage, organizational tool kits, hand tools, and administrative and housekeeping supplies and equipment.

(C) Class IIIP--Packaged petroleum, lubricants, oils, preservatives, chemicals, and additives.

(D) Class IV--Construction and barrier materials.

(E) Class VI--Personal demand items (non-military sales items).

(F) Subclass of Class VIII--Medical materials (excluding pharmaceuticals, biologicals, and reagents--suppliers should limit the mixing of excluded and non-excluded materials).

(G) Class IX--Repair parts and components including kits, assemblies and subassemblies, reparable and consumable items required for maintenance support of all equipment, excluding medical-peculiar repair parts; and

(ii) Are being shipped to one of the locations listed at http://www.acq.osd.mil/log/rfid/ or to--

(A) A location outside the contiguous United States when the shipment has been assigned Transportation Priority 1, or to--

(B) The following location(s) deemed necessary by the requiring activity:

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

Contract line,

subline, or exhibit Location name CityState DoDAAC

line item number

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

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

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

(2) The following are excluded from the requirements of paragraph (b)(1) of this clause:

(i) Shipments of bulk commodities.

(ii) Shipments to locations other than Defense Distribution Depots when the contract includes the clause at FAR 52.213-1, Fast Payment Procedures.

(c) The Contractor shall--

(1) Ensure that the data encoded on each passive RFID tag are globally unique (i.e., the tag ID is never repeated across two or more RFID tags) and conforms to the requirements in paragraph (d) of this clause;

(2) Use passive tags that are readable; and

(3) Ensure that the passive tag is affixed at the appropriate location on the specific level of packaging, in accordance with MIL-STD-129 (Section 4.9.2) tag placement specifications.

(d) Data syntax and standards. The Contractor shall encode an approved RFID tag using the instructions provided in the EPC\TM\ Tag Data Standards in effect at the time of contract award. The EPC\TM\ Tag Data Standards are available at http://www.epcglobalinc.org/standards/.

(1) If the Contractor is an EPCglobal\TM\ subscriber and possesses a unique EPC\TM\ company prefix, the Contractor may use any of the identifiers and encoding instructions described in the most recent EPC\TM\ Tag Data Standards document to encode tags.

(2) If the Contractor chooses to employ the DoD identifier, the Contractor shall use its previously assigned Commercial and Government Entity (CAGE) code and shall encode the tags in accordance with the tag identifier details located at http://www.acq.osd.mil/log/rfid/tag_data.htm. If the Contractor uses a third-party packaging house to encode its tags, the CAGE code of the third-party packaging house is acceptable.

(3) Regardless of the selected encoding scheme, the Contractor with which the Department holds the contract is responsible for ensuring that the tag ID encoded on each passive RFID tag is globally unique, per the requirements in paragraph (c)(1) of this clause. (e) Advance shipment notice. The Contractor shall use Wide Area WorkFlow (WAWF), as required by DFARS 252.232-7003, Electronic Submission of Payment Requests, to electronically submit advance shipment notice(s) with the RFID tag ID(s) (specified in paragraph (d) of this clause) in advance of the shipment in accordance with the procedures at https://wawf.eb.mil/.

(End of clause)

[FR Doc. 2011-23945 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23956]

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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 227, and 252

RIN 0750-AF84

Defense Federal Acquisition Regulation Supplement; Presumption of Development Exclusively at Private Expense (DFARS Case 2007-D003)

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

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement to implement sections of the Fiscal Year (FY) 2007 and 2008 National Defense Authorization Act, including special requirements and procedures related to the validation of a contractor's or subcontractor's asserted restrictions on technical data and computer software.

DATES: Effective date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, 703-602-8383.

SUPPLEMENTARY INFORMATION:

I. Background

This final rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 802(b) of the FY 2007 National Defense Authorization Act (NDAA) (Pub. L. 109-364) and section 815 of the FY 2008 NDAA (Pub. L. 110-181). Section 802(b) modified 10 U.S.C. 2321(f)(2) with regard to the presumption of development at private expense for major systems. Section 815 revised 10 U.S.C. 2321(f)(2) to exempt commercially available off-the-shelf items from the requirements that section 802(b) established for major systems.

This final rule implements special requirements and procedures related to the validation of a contractor's or subcontractor's asserted restrictions on technical data and computer software. More specifically, the final rule affects these validation procedures in the context of two special categories of items: Commercial items (including commercially available off-the-shelf items), which may be referred to as the ``Commercial Rule;'' and major systems (including subsystems and components of major systems), which may be referred to as the ``Major Systems Rule.''

DoD published a proposed rule with a request for comments in the Federal Register on May 7, 2010 (75 FR 25161). Two respondents provided comments.

II. Discussion and Analysis of the Public Comments

A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows.

A. Prescribing a Noncommercial Clause for Technical Data Related to a Commercial Item

Comment: Two respondents described the prescriptions at DFARS 227.7102-3(b) and 227.7103-6(a) as new requirements that exceed the changes necessary to implement the statute.

Response: The operative elements of the clause prescription at DFARS 227.7102-3(b) were a part of the last major revision of Part 227 in 1995. The substance of the prescription has not changed in the proposed rule; the requirement was redesignated as DFARS 227.7102-(4)(b) and revised to cross-reference the prescription added to DFARS 227.7103-6(a). This follows DFARS drafting principles to use only a single prescription for each clause, using cross-references when necessary. As such, the prescription at DFARS 227.7103-6(a) serves as the primary source for prescribing all uses of the clause at DFARS 252.227-7013, with a cross-reference at 227.7102-(4)(b).

Comment: A respondent recommended that the criteria ``or will pay any portion of the development costs'' should be eliminated because the Government should not receive the benefit of something it may or may not pay for in the future outside of the contract.

Response: The ``will pay'' criterion has been used since 1995. The term ``will'' is used to denote an anticipated future action or result, and there is no evidence that this criterion has been or should be interpreted as seeking to be used in a contract when the criteria used to invoke the clause has not, and is not, expected to occur during the contract.

Comment: Two respondents outlined specific concerns that prescribing use of the noncommercial clause for technical data related to a commercial item is unnecessarily burdensome with regard to the noncommercial marking requirements. One respondent argued that this could result in the contractor unintentionally forfeiting its intellectual property rights by delivering with commercial markings that do not comply with the DFARS noncommercial marking requirements. Response: The prescription for the use of the clause at DFARS 252.227-7013 in this scenario already exists. Use of commercial restrictive markings would not directly result in the forfeiture of the contractor's intellectual property rights in cases in which the noncommercial marking rules were used. The restrictive marking required by the clause at DFARS 252.227-7015(d) for technical data related to commercial items should be sufficient to: (1) Preserve the contractor's rights under the noncommercial clause procedures for correcting ``nonconforming'' markings (see DFARS 252.227-7013(h)(1)) or (2) validate asserted restrictions under DFARS 252.227-7037, which is used regardless of whether the clauses at DFARS 252.227-7013 or 252.227-7015 are included.

The final rule is amended to address concerns about the desirability of requiring noncommercial markings for the entire technical data package, in cases where the Government may have funded only a small portion of the development. The final rule revises the prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a), to clarify that in cases when the Government ``will have paid'' for any portion of the development of a commercial item, both the commercial clause at DFARS 252.227-7015 and the noncommercial clause at DFARS 252.227-7013 should be used together. In these cases, the noncommercial clause will apply only to the technical data related to those portions of the commercial item that were developed in some part at Government expense, and the commercial clause will remain applicable to the rest of the data. This preserves the preexisting allocation of rights between the parties, but avoids the necessity of applying noncommercial markings to data related to commercial technologies that were developed exclusively at private expense. In addition, the flowdown requirements of DFARS clause 252.227-7013(k) and clause 252.227-7015(e) are clarified to enable the use of the appropriate clause(s) to lower-tier subcontracts.

Comment: Two respondents commented that the proposed revisions result in a commercial item losing its commercial item status. One of these respondents recommended the elimination of the ``developed exclusively at private expense'' component of the proposed revisions to the clause at DFARS 252.227-7019, to avoid the application of the noncommercial clauses to commercial technologies.

Response: The prescription for the use of the clause at DFARS 252.227-7013 does not affect the commercial status of an item that otherwise meets the definition of commercial item at FAR 2.101 (based on 41 U.S.C. 403(12), and 10 U.S.C. 2302(3)(I)). If the item still qualifies as a commercial item, then it is a commercial item. If that commercial item was not developed exclusively at private expense, then the rules apply that govern the treatment of technical data deliverables and associated license rights related to that commercial item.

Comment: Two respondents identified several ways in which the prescribed use of the clause at DFARS 252.227-7013, instead of 252.227-7015, appears to be inconsistent with FAR and DFARS policies regarding data deliverables and data rights in commercial technologies. The respondents noted that DFARS 227.7102-1 states DoD's basic policy that DoD shall acquire only the technical data deliverables that are customarily provided to the public, with a few exceptions.

Response: The prescription for the use of the clause at DFARS 252.227-7013, when the item has been developed in part at Government expense but the item still qualifies as commercial, does not change the applicability of this policy statement. The policy provides exceptions, one of which allows the Government to require the delivery of technical data that describes modifications made at Government expense even if such data is not typically provided to the public (see DFARS 227.7102-1(a)(3)).

Comment: A respondent recommended the elimination of the ``developed exclusively at private expense'' component of the proposed revisions to the clause at DFARS 252.227-7019, to avoid the application of the noncommercial clauses to commercial technologies.

Response: The respondent's basis for concern is unclear in view of the limited applicability of the clause at DFARS 252.227-7019 to only noncommercial computer software, and the proposed revisions address only the noncommercial aspects of the Major Systems Rule. Accordingly, the proposed revisions to the validation procedures for noncommercial computer software at DFARS 227.7203-13 and 252.227-7019 are retained in the final rule.

Comment: One respondent noted that DFARS 227.7202-1 states the basic policy governing commercial computer software and computer software documentation is that the Government acquires the licenses customarily provided to the public unless such licenses are inconsistent with Federal procurement law or do not otherwise satisfy the agency's needs.

Response: The proposed rule creates no issues or conflicts with this policy since there are no changes proposed for any DFARS coverage related to commercial computer software or documentation.

B. Applying Data Rights Clauses to Subcontracts for Commercial Items

Comment: Two respondents recommended that 10 U.S.C. 2320 and 10 U.S.C. 2321 not be removed from the list of statutes set forth in DFARS 212.504(a), which prohibits their application to subcontracts for commercial items. One respondent concluded that removing these statutes from the list appears to ``unilaterally overturn the express intent of Congress and the FAR Council'' and that the proposed rule did not explain the basis for the decision to remove the statutes from the list.

Response: The proposed rule explains the basis for this determination. The decision to remove these statutes from the list is based on the appropriate statutory determinations that doing so is in the best interest of the Government. The proposed revisions to DFARS 212.504(a) are retained in the final rule.

C. Application of Statutory Technical Data Rules to Computer Software

Comment: A respondent argued that the proposed rule should not make any changes to the validation procedures for computer software; in particular, the clause at DFARS 252.227-7019, ``Validation of Asserted Restrictions--Computer Software,'' should not be amended to include the proposed new paragraph (f) that implements the ``Major Systems Rule.'' In addition, a respondent contended that the decision to cover software was flawed because: (1) There is no statutory basis for the change and (2) not all rights determinations are ``black and white.''

Response: (1) Although 10 U.S.C. 2320 and 2321 apply only to technical data and not to computer software, it is longstanding DoD policy and practice to apply the same or analogous requirements to computer software, whenever appropriate. Accordingly, the proposed rule implements revisions to the validation procedures for computer software only to the extent that those procedures are based on the technical data validation procedures that are affected by the statutory changes. The result is that it is only the Major Systems Rule that is adapted for application only to noncommercial computer software. (2) The new Major Systems Rule is applicable only to challenges of contractor assertions that development was exclusively at private expense. Thus, the proposed adaptation of the new Major Systems Rule to noncommercial software validation also is not applicable to assertions based on mixed funds, and does not in any way restrict the ability to segregate mixed-funding development into its privately-funded and Government-funded portions.

D. Two Separate Standards for Civilian and DoD Agencies

Comment: One respondent stated that the proposed rule creates two separate standards for civilian and DoD agencies in that ``the practical result could be that an item will be treated as commercial for purposes of intellectual property rights by civilian agencies, and as non-commercial by the agencies of DoD.''

Response: Without analyzing the required treatment under the FAR of a commercial item by a civilian agency when the Government has paid a portion of the development costs, the proposed rule has not changed the criteria for whether an item is a commercial item (i.e., under the definition at FAR 2.101). Since 1995, DFARS 227.7102-3(b) has required the use of the noncommercial clause at 252.227-7013 in lieu of the commercial clause at 252.227-7015 if the Government will pay any portion of the development costs of the commercial item. Although the proposed revision of the DoD validation scheme to include a ``Commercial Rule'' and a ``Major Systems Rule'' may have no equivalent in the civilian validation scheme, DoD's process is driven by the changes to 10 U.S.C. 2321, for which there is no equivalent in the civilian agency statute (41 U.S.C. 253d). No revisions are necessary.

E. Administrative, Technical and Typographical Issues

Comment: A respondent identified a citation error, which seeks to remove and reserve 212.504 paragraphs (a)(v) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts and (a)(vi) 10 U.S.C. 2327, Reporting Requirements Regarding Dealings with Terrorist Countries, when it appears that the intent is to remove paragraphs (a)(iii) 10 U.S.C. 2320, Rights in Technical Data and (iv) 10 U.S.C. 2321, Validation of Proprietary Data Restrictions.

Response: The respondent is correct. This change is reflected in the final rule.

Comment: A respondent recommended changing the cross-reference in the second sentence of DFARS 252.227-7037(c) from paragraph (b) to (b)(1) for further clarification.

Response: The respondent is correct. This change is reflected in the final rule.

F. Changes to Rule Resulting From the Public Comments

Changes made in the final rule based on the public comments received, include the following:

Removed DFARS 212.504 paragraphs (a)(iii) 10 U.S.C. 2320, Rights in Technical Data, and (a)(iv) 10 U.S.C. 2321, Validation of Proprietary Data Restrictions, instead of DFARS 212.504 paragraphs (a)(v) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts and (a)(vi) 10 U.S.C. 2327, Reporting Requirements Regarding Dealings with Terrorist Countries.

Revised the prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a) to clarify that in cases when the Government ``will have paid'' for any portion of the development of a commercial item, both the commercial clause at DFARS 252.227-7015 and the noncommercial clause at DFARS 252.227-7013 shall be used together.

Revised 252.212-7001(b) to add 252.227-7013 and 252.227-7037 to be used, as applicable.

Revised 252.212-7001(c) to add 252.227-7013, 252.227-7015 and 252.227-7037 to be flowed down to subcontractors, as applicable.

Revised the clause flowdown requirements of DFARS 252.227-7013(k) and 252.227-7015(e) to enable the use of the appropriate clause(s) to lower tier subcontracts.

Changed the cross reference in the second sentence of the clause at DFARS 252.227-7037(c) from paragraph (b) to (b)(1).

Revised 252.244-7000 to add 252.227-7015 and 252.227-7037 to be flowed down to subcontractors, as applicable.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 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 final rule will not have significant economic impact on a substantial number of small entities within the meaning for the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because major systems or subsystems are generally not developed by small businesses. The rule only applies in the limited circumstances that there is a challenge to a use or release restriction for a major system or subsystem that the contractor or subcontractor claims was developed exclusively at private expense.

V. Paperwork Reduction Act

The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 212, 227, and 252

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 212, 227, and 252 are amended as follows:

1. The authority citation for 48 CFR parts 212, 227, and 252 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

212.504 [Amended]

2. Section 212.504 is amended as follows:

(a) By removing paragraphs (a)(iii) and (iv); and

(b) Redesignating paragraphs (a)(v) through (xix) as (a)(iii) through (xvii), respectively.

PART 227--PATENTS, DATA, AND COPYRIGHTS

3. Amend section 227.7102 by removing the text, and republishing the section heading to read as follows:

227.7102 Commercial items, components, or processes.

4. Redesignate section 227.7102-3 as 227.7102-4.

5. Add new section 227.7102-3 to read as follows:

227.7102-3 Government right to review, verify, challenge and validate asserted restrictions.

Follow the procedures at 227.7103-13 and the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, regarding the validation of asserted restrictions on technical data related to commercial items.

6. Revise the newly redesignated section 227.7102-4 to read as follows:

227.7102-4 Contract clauses.

(a)(1) Except as provided in paragraph (b) of this subsection, use the clause at 252.227-7015, Technical Data-Commercial Items, in all solicitations and contracts when the Contractor will be required to deliver technical data pertaining to commercial items, components, or processes.

(2) Use the clause at 252.227-7015 with its Alternate I in contracts for the development or delivery of a vessel design or any useful article embodying a vessel design.

(b) In accordance with the clause prescription at 227.7103-6(a), use the clause at 252.227-7013, Rights in Technical Data-Noncommercial Items, in addition to the clause at 252.227-7015, if the Government will have paid for any portion of the development costs of a commercial item. The clause at 252.227-7013 will govern the technical data pertaining to any portion of a commercial item that was developed in any part at Government expense, and the clause at 252.227-7015 will govern the technical data pertaining to any portion of a commercial item that was developed exclusively at private expense.

(c) Use the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, in all solicitations and contracts for commercial items that include the clause at 252.227-7015 or the clause at 252.227-7013.

6. Amend section 227.7103-6 to revise paragraph (a) to read as follows:

227.7103-6 Contract clauses.

(a) Use the clause at 252.227-7013, Rights in Technical Data-Noncommercial Items, in solicitations and contracts when the successful offeror(s) will be required to deliver to the Government technical data pertaining to noncommercial items, or pertaining to commercial items for which the Government will have paid for any portion of the development costs (in which case the clause at 252.227-7013 will govern the technical data pertaining to any portion of a commercial item that was developed in any part at Government expense, and the clause at 252.227-7015 will govern the technical data pertaining to any portion of a commercial item that was developed exclusively at private expense). Do not use the clause when the only deliverable items are computer software or computer software documentation (see 227.72), commercial items developed exclusively at private expense (see 227.7102-4), existing works (see 227.7105), special works (see 227.7106), or when contracting under the Small Business Innovation Research Program (see 227.7104). Except as provided in 227.7107-2, do not use the clause in architect-engineer and construction contracts.

* * * * *

7. Amend section 227.7103-13 by:

(a) Redesignating paragraph (c) as paragraph (d);

(b) Adding a new paragraph (c); and

(c) Amending redesignated paragraph (d) by revising the introductory text and paragraphs (d)(2)(i) and (d)(4).

The additions and revisions read as follows.

227.7103-13 Government right to review, verify, challenge and validate asserted restrictions.

* * * * *

(c) Challenge considerations and presumption.

(1) Requirements to initiate a challenge. Contracting officers shall have reasonable grounds to challenge the validity of an asserted restriction. Before issuing a challenge to an asserted restriction, carefully consider all available information pertaining to the assertion. The contracting officer shall not challenge a contractor's assertion that a commercial item, component, or process was developed exclusively at private expense unless the Government can demonstrate that it contributed to development of the item, component or process.

(2) Presumption regarding development exclusively at private expense. 10 U.S.C. 2320(b)(1) and 2321(f) establish a presumption and procedures regarding validation of asserted restrictions for technical data related to commercial items, and to major systems, on the basis of development exclusively at private expense.

(i) Commercial items. For commercially available off-the-shelf items (defined at 41 U.S.C. 431(c)[104]) in all cases, and for all other commercial items except as provided in paragraph (c)(2)(ii) of this subsection, contracting officers shall presume that the items were developed exclusively at private expense whether or not a contractor submits a justification in response to a challenge notice. When a challenge is warranted, a contractor's or subcontractor's failure to respond to the challenge notice cannot be the sole basis for issuing a final decision denying the validity of an asserted restriction.

(ii) Major systems. The presumption of development exclusively at private expense does not apply to major systems or subsystems or components thereof, except for commercially available off-the-shelf items (which are governed by paragraph (c)(2)(i) of this subsection). When the contracting officer challenges an asserted restriction regarding technical data for a major system or a subsystem or component thereof on the basis that the technology was not developed exclusively at private expense, the contracting officer shall sustain the challenge unless information provided by the contractor or subcontractor demonstrates that the item was developed exclusively at private expense.

(d) Challenge and validation. All challenges shall be made in accordance with the provisions of the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data.

* * * * *

(2) Pre-challenge requests for information.

(i) After consideration of the situations described in paragraph (d)(3) of this subsection, contracting officers may request the person asserting a restriction to furnish a written explanation of the facts and supporting documentation for the assertion in sufficient detail to enable the contracting officer to ascertain the basis of the restrictive markings. Additional supporting documentation may be requested when the explanation provided by the person making the assertion does not, in the contracting officer's opinion, establish the validity of the assertion.

* * * * *

(4) Challenge notice. The contracting officer shall not issue a challenge notice unless there are reasonable grounds to question the validity of an assertion. The contracting officer may challenge an assertion whether or not supporting documentation was requested under paragraph (d)(2) of this subsection. Challenge notices shall be in writing and issued to the contractor or, after consideration of the situations described in paragraph (d)(3) of this subsection, the person asserting the restriction. The challenge notice shall include the information in paragraph (e) of the clause at 252.227-7037.

* * * * *

8. Amend section 227.7203-13 by:

(a) Redesignating paragraphs (d) through (f) as (e) through (g), respectively; and

(b) Adding a new paragraph (d) to read as follows:

227.7203-13 Government right to review, verify, challenge and validate asserted restrictions.

* * * * *

(d) Major systems. When the contracting officer challenges an

asserted restriction regarding noncommercial computer software for a

major system or a subsystem or component thereof on the basis that the computer software was not developed exclusively at private expense, the contracting officer shall sustain the challenge unless information provided by the contractor or subcontractor demonstrates that the computer software was developed exclusively at private expense.

* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

9. Amend section 252.212-7001 by--

(a) Revising the introductory text;

(b) Amending the clause date by removing ``(AUG 2011)'' and adding in its place ``(SEP 2011)'';

(c) Redesignating paragraphs (b)(19) through (b)(28) as paragraphs (b)(20) through (b)(29);

(d) Adding new paragraph (b)(19);

(e) Amending newly redesignated paragraph (b)(20) by removing ``(MAR 2011)'' and adding in its place ``(SEP 2011)'';

(f) Amending newly redesignated paragraph (b)(21) by removing ``(SEP 1999)'' and adding in its place ``(SEP 2011), if applicable (see 227.7102-4(c)).'';

(g) Redesignating paragraphs (c)(2) through (c)(6) as paragraphs (c)(5) through (c)(9), respectively; and (h) Adding new paragraphs (c)(2) through (c)(4).

The additions and revisions read as follows:

252.212-7001 Contract Terms and Conditions Required to Implement Statues or Executive Orders Applicable to Defense Acquisitions of Commercial Items.

As prescribed in 212.301(f)(iii) and 227.7103-6(a) and (e), use the following clauses as applicable:

* * * * *

(b) * * *

(19) 252.227-7013, Rights in Technical Data--Noncommercial Items (SEP 2011), if applicable (see 227.7103-6(a)).

* * * * *

(c) * * *

(2) 252.227-7013, Rights in Technical Data--Noncommercial Items (SEP 2011), if applicable (see 227.7103-6(a)).

(3) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if applicable (see 227.7102-4(a)).

(4) 252.227-7037, Validation of Restrictive Markings on Technical Data (SEP 2011), if applicable (see 227.7102-4(c)).

* * * * *

10. Amend section 252.227-7013 by--

(a) Amending the clause date by removing ``(MAR 2011)'' and adding in its place ``(SEP 2011)''; and

(b) Revising paragraph (k)(2) to read as follows:

252.227-7013 Rights in technical data-Noncommercial items.

* * * * *

(k) * * *

(2) Whenever any technical data for noncommercial items, or for commercial items developed in any part at Government expense, is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties. This clause will govern the technical data pertaining to noncommercial items or to any portion of a commercial item that was developed in any part at Government expense, and the clause at 252.227-7015 will govern the technical data pertaining to any portion of a commercial item that was developed exclusively at private expense. No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher-tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data.

* * * * *

11. Amend section 252.227-7015 by--

(a) Amending the clause date by removing ``(MAR 2011)'' and adding in its place ``(SEP 2011)''; and

(b) Adding new paragraph (e) to read as follows:

252.227-7015 Technical data-Commercial items.

* * * * *

(e) Applicability to subcontractors or suppliers.

(1) The Contractor shall recognize and protect the rights afforded its subcontractors and suppliers under 10 U.S.C. 2320 and 10 U.S.C. 2321.

(2) Whenever any technical data related to commercial items developed in any part at private expense will be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties. This clause will govern the technical data pertaining to any portion of a commercial item that was developed exclusively at private expense, and the clause at 252.227-7013 will govern the technical data pertaining to any portion of a commercial item that was developed in any part at Government expense.

* * * * *

12. Amend section 252.227-7019 by--

(a) Amending the clause date by removing ``(JUN 1995)'' and adding in its place ``(SEP 2011)'';

(b) Redesignating paragraphs (f) through (i) as paragraphs (g) through (j), respectively;

(c) Adding new paragraph (f);

(d) Revising the newly redesignated paragraph (g)(5);

(e) Amending the newly redesignated paragraph (h)(1) introductory text by removing ``(g)(3)'', and adding in its place ``(h)(3)''; and

0

(f) Amending the newly redesignated paragraph h)(3) by removing ``(g)(1)'', and adding in its place ``(h)(1)''.

The additions and revisions read as follows:

252.227-7019 Validation of asserted restrictions-Computer software.

* * * * *

(f) Major systems. When the Contracting Officer challenges an

asserted restriction regarding noncommercial computer software for a major system or a subsystem or component thereof on the basis that the omputer software was not developed exclusively at private expense, the Contracting Officer will sustain the challenge unless information provided by the Contractor or subcontractor demonstrates that the computer software was developed exclusively at private expense.

(g) * * *

(5) If the Contractor fails to respond to the Contracting Officer's request for information or additional information under paragraph (g)(1) of this clause, the Contracting Officer will issue a final decision, in accordance with paragraph (f) of this clause and the Disputes clause of this contract, pertaining to the validity of the asserted restriction.

* * * * *

13. Amend 252.227-7037 by--

(a) Amending the introductory text by removing ``227.7102-3(c)'' and adding in its place ``227.7102-4(c)'';

(b) Amending the clause date by removing ``(SEP 1999)'' and adding in its place ``(SEP 2011)''; and

(c) Revising paragraphs (b), (c), (f), and (l) to read as follows:

252.227-7037 Validation of restrictive markings on technical data.

* * * * *

(b) Presumption regarding development exclusively at private expense.

(1) Commercial items. For commercially available off-the-shelf items (defined at 41 U.S.C. 104) in all cases, and for all other commercial items except as provided in paragraph (b)(2) of this clause, the Contracting Officer will presume that a Contractor's asserted use or release restrictions are justified on the basis that the item, component, or process was developed exclusively at private expense. The Contracting Officer shall not challenge such assertions unless the Contracting Officer has information that demonstrates that the item, component, or process was not developed exclusively at private expense.

(2) Major systems. The presumption of development exclusively at private expense does not apply to major systems or subsystems or components thereof, except for commercially available off-the-shelf items (which are governed by paragraph (b)(1) of this clause). When the Contracting Officer challenges an asserted restriction regarding technical data for a major system or a subsystem or component thereof on the basis that the item, component, or process was not developed exclusively at private expense, the Contracting Officer will sustain the challenge unless information provided by the Contractor or subcontractor demonstrates that the item, component, or process was developed exclusively at private expense.

(c) Justification. The Contractor or subcontractor at any tier is responsible for maintaining records sufficient to justify the validity of its markings that impose restrictions on the Government and others to use, duplicate, or disclose technical data delivered or required to be delivered under the contract or subcontract. Except as provided in paragraph (b)(1) of this clause, the Contractor or subcontractor shall be prepared to furnish to the Contracting Officer a written justification for such restrictive markings in response to a challenge under paragraph (e) of this clause.

* * * * *

(f) Final decision when Contractor or subcontractor fails to respond. Upon a failure of a Contractor or subcontractor to submit any response to the challenge notice the Contracting Officer will issue a final decision to the Contractor or subcontractor in accordance with paragraph (b) of this clause and the Disputes clause of this contract pertaining to the validity of the asserted restriction. This final decision shall be issued as soon as possible after the expiration of the time period of paragraph (e)(1)(ii) or (e)(2) of this clause. Following issuance of the final decision, the Contracting Officer will comply with the procedures in paragraphs (g)(2)(ii) through (iv) of this clause.

* * * * *

(l) Flowdown. The Contractor or subcontractor agrees to insert this clause in contractual instruments with its subcontractors or suppliers at any tier requiring the delivery of technical data.

* * * * *

14. Amend section 252.244-7000 by--

(a) Amending the clause date by removing ``(AUG 2011)'' and adding in its place ``(SEP 2011)'';

(b) Redesignating paragraphs (c) through (h) as (e) through (j), respectively; and

(c) Adding new paragraphs (c) and (d) as follows:

252.244-7000 Subcontracts for commercial items and commercial components (DoD contracts).

* * * * *

(c) 252.227-7015, Technical Data--Commercial Items (SEP 2011), if applicable (see 227.7102-4(a)).

(d) 252.227-7037, Validation of Restrictive Markings on Technical Data (SEP 2011), if applicable (see 227.7102-4(c)).

* * * * *

[FR Doc. 2011-23956 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23944]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 213

RIN 0750-AH07

Defense Federal Acquisition Regulation Supplement; Ships Bunkers Easy Acquisition (SEA) Card[supreg] and Aircraft Ground Services (DFARS Case 2009-D019)

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

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement to allow the use of U.S. Government fuel cards in lieu of a Purchase Order-Invoice-Voucher for fuel, oil, and refueling-related items for purchases not exceeding the simplified acquisition threshold.

DATES: Effective Date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Dustin Pitsch, telephone 703-602-0289.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule in the Federal register at 76 FR 21849 on April 19, 2011, to add language to Defense Federal Acquisition Regulation Supplement (DFARS) 213.306(a)(1)(A) to include purchases of marine fuel, oil, and refueling-related items up to the simplified acquisition threshold using the Ships Bunkers Easy Acquisition (SEA) Card[reg] in lieu of the SF 44, Purchase Order-Invoice-Voucher. Additionally, this section is revised to include additional ground refueling-related services when using the AIR Card[supreg]. These changes for use of the AIR Card[supreg] and SEA Card[supreg] will improve the refueling capability of aircraft and smaller vessels at non-contract locations. No public comments were received in response to the proposed rule.

II. Executive Order 12866 and Executive Order 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not 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

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:

This is a final rule to revise the Defense Federal Acquisition Regulation Supplement (DFARS) at 213 to permit the use of U.S. Government fuel cards in lieu of an SF 44, Purchase Order-Invoice-Voucher, for fuel, oil, and refueling-related items for purchases not exceeding the simplified acquisition threshold. The objective of this rule is to amend DFARS 213.306(a)(1)(A) to (1) Permit the purchase of marine fuel using the Ships' bunkers Easy Acquisition (SEA) Card[supreg] in lieu of the SF44, Purchase Order-Invoice-Voucher, up to the simplified acquisition threshold and (2) provide additional ground refueling-related services when using the AIR Card[supreg]. The legal basis is 41 U.S.C. 1303 and 48 CFR chapter 1.

Purchases of aviation fuel are on-the-spot, over the counter transactions (``gas and go''), but generally exceed the micro-purchase threshold due to the price of aviation fuel and oil fuel tank capacities. Previously, the threshold for SF44/AIR Card[supreg] purchases of fuel and oil was set at the simplified acquisition threshold at DFARS 213.306(a)(1)(A)) under DFARS Case 2007-D017 (see final rule published at 72 FR 6484 on February 12, 2007).

The military services and the U.S. Coast Guard have small vessels that fulfill valid mission needs in direct support of national security. Unlike larger vessels, small vessels' movements and needs are often unpredictable. These small vessels must procure fuel away from their home stations, but because of their smaller size and unique mission requirements are unable to use the Defense Logistics Agency energy bunkers contracts available at major seaports. Due to port restrictions, bunkering merchants do not typically provide support to smaller vessels. Instead, these smaller vessels frequent non-contract merchants or ``marina-type merchants'' that otherwise serve civilian recreational watercraft and similar needs.

No public comments were received in response to the initial regulatory flexibility analysis.

Approximately 80% of ``marina-type merchants'' are considered small businesses. Marina-type merchants accepting the SEA Card[reg] will pay a normal fee to the banking institution or processing center, similar to VISA charges these merchants incur from other credit card clients. In addition, merchants are expected to benefit from accelerated payments, since they will be paid by the banking institution in accordance with their merchant agreement. The rule facilitates open market purchases, benefits merchants by making it much easier for merchants to do business with the military and will not have a significant cost or administrative impact on contractors, subcontractors, or offerors.

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 does not have a significant effect beyond DoD's internal operating procedures, substituting the use of a fuel card (AIR Card[supreg] and SEA Card[supreg]) in lieu of the SF44, Purchase Order-Invoice-Voucher.

IV. Paperwork Reduction Act

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 213

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 213 is amended as follows:

PART 213--SIMPLIFIED ACQUISITION PROCEDURES

1. The authority citation for 48 CFR part 213 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

2. Section 213.306 is amended to revise paragraph (a)(1)(A) to read as follows:

213.306 SF 44, Purchase Order-Invoice-Voucher.

(a)(1) * * *

(A) Fuel and oil. U.S. Government fuel cards may be used in lieu of an SF 44 for fuel, oil, and authorized refueling-related items (see PGI 213.306 for procedures on use of fuel cards);

* * * * *

[FR Doc. 2011-23944 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23949]

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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 215

RIN 0750-AG82

Defense Federal Acquisition Regulations Supplement; Discussions Prior to Contract Award (DFARS Case 2010-D013)

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

ACTION: Final rule.

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SUMMARY: DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to strongly encourage discussions prior to award for source selections of procurements estimated at $100 million or more.

DATES: Effective Date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Dustin Pitsch, telephone 703-602-0289.

SUPPLEMENTARY INFORMATION:

I. Background

DoD published a proposed rule at 75 FR 71647 on November 24, 2010, to implement the recommendation of the DoD Source Selection Joint Analysis Team (JAT) to strongly encourage the use of discussions in all competitive negotiated procurements over $100 million. The period for public comment closed on January 24, 2011, and three respondents provided comments.

The rule proposed to amend DFARS part 215 to strongly recommend, for acquisitions of more than $100 million, that contracting officers hold discussions rather than use the authority at FAR 52.215-1 to award on initial offers without discussions.

II. Discussion and Analysis

A. Proposed rule is excessive

Comment: One respondent said that the proposed rule is ``overkill.''

Response: No change was made in the final rule in response to this comment. The JAT advises that data shows that the number of protests filed against the award of competitive negotiated contracts and orders over $100 million is substantially higher when discussions are not held. A preference for holding discussions is recognition of a best practice.

B. Negative effects possible

Comment: One respondent wrote that requiring discussions could have negative effects, such as added Government and industry cost due to the significant increase in the source selection schedule and reduced solicitation and proposal quality due to a mindset that problems can be fixed during discussions.

Response: The JAT data demonstrates that procurement lead time is significantly extended when protests occurred. The second concern raised by the respondent, that proposals will be of lower quality, is unrealistic because the offeror that chooses to submit an inferior proposal always runs the risk of not making the competitive range and therefore not being considered for award.

C. Change reference

Comment: A respondent wanted to change the reference from 215.203-71 to 215.306(d) because the latter deals with discussions, which are covered at FAR 15.306(d).

Response: DoD agrees with the recommendation. The statement about holding discussions for actions of $100 million or more is relocated in the final rule to DFARS subpart 215.306(c) from 215.2.

D. Remove ``competitive range'' limitation

Comment: A respondent proposed deleting the phrase ``with offerors in the competitive range'' at the end of the sentence ``(F)or source selections when the procurement is $100 million or more, contracting officers should conduct discussions with offerors in the competitive range.'' The respondent noted that FAR 15.306(c)(1) and (d), read together, require the conduct of discussions with all offerors in the competitive range in every case.

Response: DoD agrees with respondent that the FAR already mandates discussions with all offerors whose proposals have been selected for the competitive range. The intent of this rule is to expand the situations in which discussions are held beyond those situations where they may be already mandated. The language in the proposed rule at DFARS 215.203-71 is relocated to 215.306(c)(1) in the final rule and revised to state ``For source selections, when the procurement is $100 million or more, contracting officers should conduct discussions. Follow the procedures at FAR 15.306(c) and (d).''

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 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 does not expect 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 final rule does not add to or delete existing regulations on discussions for DoD procurements under $100 million, the majority of DoD procurements. For procurements of at least $100 million, any increase in discussions is anticipated to benefit all offerors, including small businesses, by providing them an opportunity to explain details of the offer and address their particular capabilities.

A final regulatory flexibility analysis was performed and is summarized as follows. This rule was initiated at the request of the Director, Defense Procurement and Acquisition Policy, to implement a recommendation of the Department of Defense (DoD) Source Selection Joint Analysis Team (JAT). The JAT, which was tasked to revise the DoD Source Selection Procedures, determined that there is a significant positive correlation between high-dollar source selections conducted without discussions and the number of protests sustained. In order to improve the quality of high-dollar, complex source selections, and reduce turbulence and inefficiency resulting from sustained protests, the policy is changed to strongly encourage discussions prior to the award of source selections estimated at $100 million or more.

DoD research has indicated that meaningful discussions with industry prior to contract award on high-dollar, complex requirements improves both industry's understanding of solicitation requirements and the Government's understanding of industry issues. By identifying and discussing these issues prior to submission of final proposals, the Government is often able to issue clarifying language. The modified requirements documentation allows industry to tailor proposals and better describe the offeror's intended approach, increases the probability that the offeror's proposal satisfies the Government requirements, and often results in better contract performance. Asking contracting officers to conduct discussions with industry provides a reasonable approach to recognizing and addressing valid industry concerns and a constructive alternative to protests resulting from industry frustration over misunderstood requirements. The legal basis is 41 U.S.C. 1303 and 48 CFR chapter 1.

Data were reviewed for the most recent year available, Fiscal Year 2009. While there is no data source available that tabulates the number of offers received from small businesses, DoD determined that 620 new contracts and 252 new task orders or delivery orders of $100 million or more were awarded to small businesses during Fiscal Year 2009. Therefore, DoD estimates that at least 872 small businesses could benefit from this policy change.

There is no reporting, recordkeeping, or other compliance requirement associated with the proposed rule. Therefore, there is no impact, positive or negative, on small businesses in this area. Thus, there are no additional professional skills necessary on the part of small businesses in this area. There are no direct costs to small business firms to comply with this rule. Conversely, small businesses that might have previously filed a protest against an award when discussions were not held may now be able to avoid the costs associated with protesting.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no practical alternatives that will accomplish the objectives of the proposed rule. When a solicitation includes the provision at FAR 52.215-1, Instructions to Offerors--Competitive Acquisitions, paragraph (f)(4) of the clause states that the ``Government intends to evaluate proposals and award a contract without discussions.'' If, however, the solicitation includes FAR 52.215-1 with its Alternate I, then the revised paragraph (f)(4) states that the ``Government intends to evaluate proposals and award a contract after conducting discussions with offerors whose proposals have been determined to be within the competitive range.'' Use of the clause without Alternate I will not accomplish the stated objectives; only the clause with its Alternate I will accomplish the purpose of this case.

No comments were received from small entities on this rule.

V. Paperwork Reduction Act.

The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 215

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 215 is amended as follows:

PART 215--CONTRACTING BY NEGOTIATION

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

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

2. Section 215.209 is added as follows:

215.209 Solicitation provisions and contract clauses.

(a) For source selections when the procurement is $100 million or more, contracting officers should use the provision at FAR 52.215-1, Instructions to Offerors--Competitive Acquisition, with its Alternate I.

3. Section 215.306 is added as follows:

215.306 Exchanges with offerors after receipt of proposals.

(c) Competitive range.

(1) For acquisitions with an estimated value of $100 million or more, contracting officers should conduct discussions. Follow the procedures at FAR 15.306(c) and (d).

[FR Doc. 2011-23949 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23963]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 217 and 241

RIN 0750-AG89

Defense Federal Acquisition Regulation Supplement; Multiyear Contracting (DFARS Case 2009-D026)

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 update and clarify the requirements for multiyear contracting.

DATES: Effective date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, telephone (703) 602-8383.

SUPPLEMENTARY INFORMATION:

I. Background

This DFARS case was initiated by DoD to perform a comprehensive review of DFARS subpart 217.1, Multiyear Contracting. On March 2, 2011, the DoD published a proposed rule to update and clarify the requirements relating to multiyear contracting. This final rule reorganizes and updates existing coverage for multiyear acquisitions.

A minor editorial change was made to the final rule at DFARS 217.170 to remove the redundant introductory sentence that had been proposed at 217.170(a) and to revert to the original paragraph numbering of this section. At DFARS 217.172(f)(1), the references to 217.172(g)(4) and (5) were corrected to refer to 217.172(g)(3) and (4). Coverage at 217.175 was renumbered to 217.174 to follow in sequence, and this required a reference citation change at 241.103. No changes to existing DoD policy, including implementation of any statutorily mandated acquisition-related thresholds, are being made in this rule.

II. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 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 rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not change the existing requirements of subpart 217.1. Furthermore, these requirements are primarily internal procedures for DoD. No comments were received from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610.

IV. Paperwork Reduction Act

This rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 217 and 241:

Government procurement.

Mary Overstreet

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 217 and 241 are amended as follows:

1. The authority citation for 48 CFR parts 217 and 241 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 217--SPECIAL CONTRACTING METHODS

2. Section 217.170 is amended by--

a. Amending paragraph (a), by removing ``Section'' and adding in its place ``section'' and removing ``Public Law 105-56'' and adding in its place ``Pub. L. 105-56,'';

b. Amending paragraph (b), by removing ``217.172(f)(2)'' and adding in its place ``217.172(g)(2)'';

c. Amending paragraph (c) by removing ``Section'' and adding in its place ``section'' and removing ``Public Law 105-56'' and adding in its place ``Pub. L. 105-56,'';

d. Amending paragraph (c) by removing in the listing of references ``;'' in two places and adding in its place ``,''; and

e. Revising paragraph (e) to read as follows:

217.170 General.

* * * * *

(e)(1) DoD must provide notification to the congressional defense committees at least 30 days before entering into a multiyear contract for certain procurements, including those expected to--

(i) Employ an unfunded contingent liability in excess of $20 million (see 10 U.S.C. 2306b(l)(1)(B)(i)(II), 10 U.S.C. 2306c(d)(1), and section 8008(a) of Pub. L. 105-56 and similar sections in subsequent DoD appropriations acts);

(ii) Employ economic order quantity procurement in excess of $20 million in any one year of the contract (10 U.S.C. 2306b(l)(1)(B)(i)(I));

(iii) Involve a contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20 million in any one year (see 10 U.S.C. 306b(l)(1)(B)(ii) and section 8008(a) of Pub. L. 105-56 and similar sections in subsequent DoD appropriations acts); or

(iv) Include a cancellation ceiling in excess of $100 million (see 10 U.S.C. 2306c(d)(4), 10 U.S.C. 2306b(g), and section 8008(a) of Pub. L. 105-56 and similar sections in subsequent DoD appropriations acts).

(2) A DoD component must submit a request for authority to enter into a multiyear contract described in paragraphs (e)(1)(i) through (iv) of this section as part of the component's budget submission for the fiscal year in which the multiyear contract will be initiated. DoD will include the request, for each candidate it supports, as part of the President's budget for that year and in the Appendix to that budget as part of proposed legislative language for the appropriations bill for that year (section 8008(b) of Pub. L. 105-56).

(3) If the advisability of using a multiyear contract becomes apparent too late to satisfy the requirements in paragraph (e)(2) of this section, the request for authority to enter into a multiyear contract must be--

(i) Formally submitted by the President as a budget amendment; or

(ii) Made by the Secretary of Defense, in writing, to the congressional defense committees (see section 8008(b) of Pub. L. 105-56).

(4) Agencies must establish reporting procedures to meet the congressional notification requirements of paragraph (e)(1) of this section. The head of the agency must submit a copy of each notice to the Director of Defense Procurement and Acquisition Policy, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics) (OUSD(AT&L)DPAP), and to the Deputy Under Secretary of Defense (Comptroller) (Program/Budget) (OUSD(C)(P/B)).

(5) If the budget for a contract that contains a cancellation ceiling in excess of $100 million does not include proposed funding for the costs of contract cancellation up to the cancellation ceiling established in the contract--

(i) The notification required by paragraph (e)(1) of this section shall include--

(A) The cancellation ceiling amounts planned for each program year in the proposed multiyear contract, together with the reasons for the amounts planned;

(B) The extent to which costs of contract cancellation are not included in the budget for the contract; and

(C) A financial risk assessment of not including budgeting for costs of contract cancellation (10 U.S.C. 2306b(g) and 10 U.S.C. 2306c(d)); and

(ii) The head of the agency shall provide copies of the notification to the Office of Management and Budget at least 14 days before contract award.

3. Amend section 217.171 by--

(a) Removing paragraphs (a)(4) through (a)(6) and paragraph (b); (c) Redesignating paragraphs (a)(2), (a)(2)(i), (a)(2)(ii), and (a)(2)(iii) as paragraphs (b), (b)(1), (b)(2), and (b)(3), respectively;

(d) Redesignating paragraphs (a)(3), (a)(3)(i), (a)(3)(ii), (a)(3)(ii)(A), (a)(3)(ii)(B) and (a)(3)(iii) as paragraphs (c), (c)(1), (c)(2), (C)(2)(i), (c)(2)(ii) and (c)(3), respectively; and

(f) Revising paragraph (a) as set forth below. The revision reads as follows:

217.171 Multiyear contracts for services.

(a) The head of the agency may enter into a multiyear contract for a period of not more than 5 years for the following types of services (and items of supply relating to such services), even though funds are limited by statute to obligation only during the fiscal year for which they were appropriated (10 U.S.C. 2306c). Covered services are--

(1) Operation, maintenance, and support of facilities and installations;

(2) Maintenance or modification of aircraft, ships, vehicles, and other highly complex military equipment;

(3) Specialized training requiring high-quality instructor skills (e.g., training for pilots and aircrew members or foreign language training);

(4) Base services (e.g., ground maintenance, in-plane refueling, bus transportation, and refuse collection and disposal); and

(5) Environmental remediation services for--

(i) An active military installation;

(ii) A military installation being closed or realigned under a base closure law as defined in 10 U.S.C. 2667(h)(2); or

(iii) A site formerly used by DoD.

* * * * *

4. Section 217.172 is revised to read as follows:

217.172 Multiyear contracts for supplies.

(a) This section applies to all multiyear contracts for supplies, including weapon systems and other multiyear acquisitions specifically authorized by law (10 U.S.C. 2306b).

(b) The head of the agency may enter into a multiyear contract for supplies if, in addition to the conditions listed in FAR 17.105-1(b), the use of such a contract will promote the national security of the United States (10 U.S.C. 2306b(a)(6)).

(c) Multiyear contracts in amounts exceeding $500 million must be specifically authorized by law (10 U.S.C. 2306b and 10 U.S.C. 2306c). A multiyear supply contract may be authorized by an appropriations act or a law other than an appropriations act (10 U.S.C. 2306b(i)(3) and (l)(3)).

(d) The head of the agency shall not enter into a multiyear contract unless--

(1) The Secretary of Defense has submitted to Congress a budget request for full funding of units to be procured through the contract; and

(2) In the case of a contract for procurement of aircraft, the budget request includes full funding of procurement funds for production beyond advance procurement activities of aircraft units to be produced in the fiscal year covered by the budget.

(e)(1) The head of the agency must not enter into or extend a multiyear contract that exceeds $500 million (when entered into or extended until the Secretary of Defense identifies the contract and any extension in a report submitted to the congressional defense committees (10 U.S.C. 2306b(1)(5)).

(2) In addition, for contracts equal to or greater than $500 million, the head of the contracting activity must determine that the conditions required by paragraph (g)(2)(i) through (vii) of this section will be met by such contract, in accordance with the Secretary's certification and determination required by paragraph (g)(2) of this section (10 U.S.C. 2306b(a)(1)(7)).

(f) The head of the agency may enter into a multiyear contract for--

(1) A weapon system and associated items, services, and logistics support for a weapon system; and

(2) Advance procurement of components, parts, and materials necessary to manufacture a weapon system, including advance procurement to achieve economic lot purchases or more efficient production rates (see 217.172(g)(3) and (4) regarding economic order quantity procurements). Before initiating an advance procurement, the contracting officer must verify that it is consistent with DoD policy (e.g., the full funding policy in Volume 2A, chapter 1, of DoD 7000.14-R, Financial Management Regulation).

(g) The head of the agency shall ensure that the following conditions are satisfied before awarding a multiyear contract under the authority described in paragraph (b) of this section:

(1) The multiyear exhibits required by DoD 7000.14-R, Financial Management Regulation, are included in the agency's budget estimate submission and the President's budget request.

(2) The Secretary of Defense certifies to Congress in writing, by no later than March 1 of the year in which the Secretary requests legislative authority to enter into such contracts, that each of the conditions in paragraphs (g)(2)(i) through (vii) of this section is are satisfied (10 U.S.C. 2306b(i)(1)(A) through (G)).

(i) The Secretary has determined that each of the requirements in FAR 17.105, paragraphs (b)(1) through (5) will be met by such contract and has provided the basis for such determination to the congressional defense committees (10 U.S.C. 2306b(i)(1)(A)).

(ii) The Secretary's determination under paragraph (g)(2)(i) of this section was made after the completion of a cost analysis performed by the Defense Cost and Resource Center of the Department of Defense and such analysis supports the findings (10 U.S.C. 2306b(i)(1)(B)).

(iii) The system being acquired pursuant to such contract has not been determined to have experienced cost growth in excess of the critical cost growth threshold pursuant to 10 USC 2433(d) within 5 years prior to the date the Secretary anticipates such contract (or a contract for advance procurement entered into consistent with the authorization for such contract) will be awarded (10 U.S.C. 2306b(i)(1)(C)).

(iv) A sufficient number of end items of the system being acquired under such contract have been delivered at or within the most current estimates of the program acquisition unit cost or procurement unit cost for such system to determine that current estimates of such unit costs are realistic (10 U.S.C. 2306b(i)(1)(D)).

(v) Sufficient funds will be available in the fiscal year in which the contract is to be awarded to perform the contract, and the future-years defense program for such fiscal year will include the funding required to execute the program without cancellation (10 U.S.C. 2306b(i)(1)(E)).

(vi) The contract is a fixed price type contract (10 U.S.C. 2306b(i)(1)(F)).

(vii) The proposed multiyear contract provides for production at not less than minimum economic rates, given the existing tooling and facilities. The head of the agency shall submit to USD(C)(P/B) information supporting the agency's determination that this requirement has been met (10 U.S.C. 2306b(i)(1)(G)).

(viii) The head of the agency shall submit information supporting this certification to USD(C)(P/B) for transmission to Congress through the Secretary of Defense.

(A) The head of the agency shall, as part of this certification, give written notification to the congressional defense committees of--

(1) The cancellation ceiling amounts planned for each program year in the proposed multiyear contract, together with the reasons for the amounts planned;

(2) The extent to which costs of contract cancellation are not included in the budget for the contract; and

(3) A financial risk assessment of not including the budgeting for costs of contract cancellation (10 U.S.C. 2306b(g)); and

(B) The head of the agency shall provide copies of the notification to the Office of Management and Budget at least 14 days before contract award.

(3) The contract is for the procurement of a complete and usable end item (10 U.S.C. 2306b(i)(4)(A)).

(4) Funds appropriated for any fiscal year for advance procurement are obligated only for the procurement of those long-lead items that are necessary in order to meet a planned delivery schedule for complete major end items that are programmed under the contract to be acquired with funds appropriated for a subsequent fiscal year (including an economic order quantity of such long-lead items when authorized by law (10 U.S.C. 2306b(i)(4)(B)).

(5) The Secretary may make the certification under paragraph (g)(2) of this section notwithstanding the fact that one or more of the conditions of such certification are not met if the Secretary determines that, due to exceptional circumstances, proceeding with a multiyear contract under this section is in the best interest of the Department of Defense and the Secretary provides the basis for such determination with the certification (10 U.S.C. 2306b(i)(5)).

(6) The Secretary of Defense may not delegate this authority to make the certification under paragraph (g)(2) of this section or the determination under paragraph (g)(5) of this section to an official below the level of the Under Secretary of Defense for Acquisition, Technology, and Logistics (10 U.S.C. 2306b(i)(6)).

(7) The Secretary of Defense shall send a notification containing the findings of the agency head under FAR 17.105-1(b), and the basis for such findings, 30 days prior to the award of a multiyear contract or a defense acquisition program that has been specifically authorized by law to the congressional defense committees (10 U.S.C. 2306b(i)(7)).

(8) All other requirements of law are met and there are no other statutory restrictions on using a multiyear contract for the specific system or component (10 U.S.C. 2306b(i)(2)). One such restriction may be the achievement of specified cost savings. If the agency finds, after negotiations with the contractor(s), that the specified savings cannot be achieved, the head of the agency shall assess the savings that, nevertheless, could be achieved by using a multiyear contract. If the savings are substantial, the head of the agency may request relief from the law's specific savings requirement. The request shall--

(i) Quantify the savings that can be achieved;

(ii) Explain any other benefits to the Government of using the multiyear contract;

(iii) Include details regarding the negotiated contract terms and conditions; and

(iv) Be submitted to OUSD(AT&L)DPAP for transmission to Congress via the Secretary of Defense and the President.

(h) The Secretary of Defense may instruct the head of the agency proposing a multiyear contract to include in that contract negotiated priced options for varying the quantities of end items to be procured over the life of the contract (10 U.S.C. 2306b(j)).

5. Section 217.173 is revised to read as follows:

217.173 Multiyear contracts for military family housing. The head of the agency may enter into multiyear contracts for periods up to 4 years for supplies and services required for management, maintenance, and operation of military family housing and may pay the costs of such contracts for each year from annual appropriations for that year (10 U.S.C. 2829).

217.174 [Removed]

6. Section 217.174 is removed.

7. Section 217.175 is redesignated as 217.174 and the newly redesignated section 217.174 paragraph (b) is revised as set forth below.

217.174 Multiyear contracts for electricity from renewable energy sources.

* * * * *

(b) Limitations. The head of the contracting activity may exercise the authority in paragraph (a) of this section to enter into a contract for a period in excess of 5 years only if the head of the contracting activity determines, on the basis of a business case analysis (see PGI 217.174 for a business case analysis template and guidance) prepared by the requiring activity, that--

(1) The proposed purchase of electricity under such contract is cost effective; and

(2) It would not be possible to purchase electricity from the source in an economical manner without the use of a contract for a period in excess of 5 years.

* * * * *

PART 241--ACQUISITION OF UTILITY SERVICES

8. Section 241.103 paragraph (2) is revised to read as follows:

241.103 Statutory and delegated authority.

* * * * *

(2) See 217.174 for authority to enter into multiyear contracts for electricity from renewable energy sources.

* * * * *

[FR Doc. 2011-23963 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P

[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]

[Rules and Regulations]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-23952]

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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 236

RIN 0750-AG91

Defense Federal Acquisition Regulation Supplement; Construction and Architect-Engineer Services Performance Evaluation (DFARS Case 2010-D024)

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

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove the requirement to use DoD-unique forms to prepare contractor performance evaluations for construction and architect-engineer services.

DATES: Effective Date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Manuel Quinones, telephone, (703) 602-8383.

SUPPLEMENTARY INFORMATION:

I. Background

This rule removes the requirement to use DoD-unique forms to document contractor past performance for construction and Architect-Engineer services. On April 19, 2011, DoD published a proposed rule in the Federal Register at 75 FR 21851 to delete outdated procedures and references to obsolete DD forms. No public comments were received in response to the proposed rule.

One editorial change is being made to the final rule. The references to ``A-E'' are revised to read ``architect-engineer'' in sections 236.102, 236.602-70, 236.606-70, and in 236.609-70.

II. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 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

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows. DoD is amending the DFARS to reflect the current automated process being used by and delete outdated procedures and references to obsolete DD forms. The objective of this rule is to remove the requirement to use DD Form 2626, Performance Evaluation (Construction), and DD Form 2631, Performance Evaluation (Architect-Engineer), to evaluate contractor performance.

The Contractor Performance Assessment Report System (CPARS) is now the Governmentwide system for electronically collecting past performance data; there is no need to specify separate DoD forms to collect the data. Accordingly, this rule removes the requirement to use DD forms 2626 and 2631 from the DFARS.

On April 19, 2011, DoD published a proposed rule at 75 FR 21851. The period for public comments closed on June 20, 2011. DoD made no changes to the proposed rule because public comments were not received in response to the initial regulatory flexibility analysis.

There are no reporting, recordkeeping, or other compliance

requirements associated with this rule. Thus, there are no professional skills necessary on the part of small businesses. In a like manner, there are no direct costs to small entities to comply with this rule other than the cost of internet access should small entities choose to comment on their past performance evaluation entered into CPARS by Government personnel.

There are no known relevant Federal rules that may duplicate, overlap or conflict with this rule. Instead, the rule aligns the DFARS to the Federal Acquisition Regulation (FAR) ensuring that agencies submit past performance reports electronically per FAR 42.15 eliminating the need for paper reports.

No mitigation steps were taken, since the rule does not have a significant adverse economic impact on small entities.

IV. Paperwork Reduction Act

This rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of subjects in 48 CFR Part 236

Government procurement.

Mary Overstreet,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR part 236 is amended as follows:

PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

1. The authority citation for 48 CFR part 236 continues to read as follows:

Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

236.102 [Amended]

2. Amend section 236.102 by--

(a) Removing paragraph designations (1) through (4);

(b) Redesignating paragraphs (i) and (ii) in the definitions of ``Construction activity'' as paragraphs (1) and (2); and

(c) Removing the definition of ``A-E''.

236.201 [Removed]

3. Section 236.201 is removed.

236.602-70 [Amended]

4. Amend section 236.602-70 by removing ``A-E'' and adding in its place ``architect-engineer''.

5. Revise section 236.604 to read as follows:

236.604 Performance evaluation.

Prepare a separate performance evaluation after actual construction of the project. Ordinarily, the evaluating official should be the person most familiar with the architect-engineer contractor's performance.

236.606-70 Statutory fee limitation. [Amended]

6. Amend section 236.606-70(a) to remove ``A-E'' and add in its place ``architect-engineer''.

236.609-70 [Amended]

7. Amend section 236.609-70 as follows--

(a) In paragraph (a)(1) introductory text remove ``A-E'' and add in its place ``architect-engineer''.

(b) In paragraph (a)(1)(ii) remove ``A-E'' and add in its place ``architect-engineer contractor''.

(c) In paragraph (b) introductory text remove ``A-E'' and add in its place ``architect-engineer''.

[FR Doc. 2011-23952 Filed 9-19-11; 8:45 am]

BILLING CODE 5001-08-P