2011-23950. 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 [phone].

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.

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(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;

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