01-27372. Defense Federal Acquisition Regulation Supplement; Acquisition of Commercial Items

AGENCY:

Department of Defense (DoD).

ACTION:

Final rule.

SUMMARY:

DoD has issued a final rule amending Defense Federal Acquisition Regulation Supplement (DFARS) policy pertaining to the acquisition of commercial items. The rule updates the lists of clauses included in contracts for commercial items to implement statutory requirements.

EFFECTIVE DATE:

November 1, 2001.

FOR FURTHER INFORMATION CONTACT:

Ms. Angelena Moy,Defense Acquisition Regulations Council, OUSD(AT&L)DP(DAR),IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone [phone]; facsimile [phone].

SUPPLEMENTARY INFORMATION:

A. Background

This rule finalizes the interim rule published as Item XXXV of Defense Acquisition Circular 91-9 on November 30, 1995 (60 FR 61586). The interim rule amended the DFARS to conform to FAR changes that implemented Title VIII of the Federal Acquisition Streamlining Act of 1994 (Public Law 103-355) pertaining to the acquisition of commercial items. The interim rule also added DoD-unique requirements pertaining to the acquisition of commercial items.

The final rule differs from the interim rule in that it adds the following to the lists of provisions and clauses that must be included in solicitations and contracts to implement statutory requirements:

• FAR 52.203-3, Gratuities (10 U.S.C. 2207).
• DFARS 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country (10 U.S.C. 2327).
• DFARS 252.219-7004, Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan (Test Program) (15 U.S.C. 637 note).

In addition, the final rule adds dates to the contract clauses listed in 252.212-7001, to clarify which version of each clause applies to a contract.

Ten sources submitted comments on the interim rule. DoD considered all comments in the development of the final rule.

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

B. Regulatory Flexibility Act

DoD has prepared a final regulatory flexibility analysis. Interested parties may obtain a copy of the analysis from the point of contact specified herein. The analysis is summarized as follows:

This rule finalizes an interim DFARS rule published on November 30, 1995. The rule implements provisions of the Federal Acquisition Streamlining Act of 1994 and supplements FAR policy pertaining to the acquisition of commercial items. The objective of the FAR and DFARS policy is to streamline procedures for the acquisition of commercial items. DoD received no comments in response to the initial regulatory flexibility analysis. The rule applies to all small entities that are interested in selling commercial items to DoD. Based on data collected by DoD's Washington Headquarters Services, in Fiscal Year 2000, DoD awarded approximately 11,437 contracts totaling $2.2 billion to small business concerns using the streamlined procedures in the interim rule. There are no significant alternatives to the rule that would accomplish the stated objectives.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 212 and 252

• Government procurement

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

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

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

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

PART 212—ACQUISITION OF COMMERCIAL ITEMS

2. Section 212.301 is amended as follows:

a. In paragraph (f)(iii), by removing “paragraph (a)” and adding in its place “paragraphs (a) and (b)”;

b. By redesignating paragraphs (f)(v) and (f)(vi) as paragraphs (f)(vi) and (f)(vii), respectively; and

c. By adding a new paragraph (f)(v) to read as follows:

212.301

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

* * * * *

(f) * * *

(v) 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).

* * * * *

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Section 252.212-7001 is revised to read as follows:

252.212-7001

Contract terms and conditions required to implement statutes or Executive orders applicable to Defense acquisitions of commercial items.

As prescribed in 212.301(f)(iii), use the following clause:

Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items (NOV 2001)

(a) The Contractor agrees to comply with the following Federal Acquisition Regulation (FAR) clause which, if checked, is included in this contract by reference to implement a provision of law applicable to acquisitions of commercial items or components.

___ 52.203-3 Gratuities (APR 1984) (10 U.S.C. 2207).

(b) The Contractor agrees to comply with any clause that is checked on the following list of Defense FAR Supplement clauses which, if checked, is included in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items or components.

___ 252.205-7000 Provision of Information to Cooperative Agreement Holders (DEC 1991) (10 U.S.C. 2416).

___ 252.206-7000 Domestic Source Restriction (DEC 1991) (10 U.S.C. 2304).

___ 252.219-7003 Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan (DoD Contracts) (APR 1996) (15 U.S.C. 637).

___ 252.219-7004 Small, Small Disadvantaged and Women-Owned Small Business Subcontracting Plan (Test Program) (JUN 1997) (15 U.S.C. 637 note).

___ 252.225-7001 Buy American Act and Balance of Payments Program (MAR 1998) (41 U.S.C. 10a-10d, E.O. 10582).

___ 252.225-7007 Buy American Act—Trade Agreements—Balance of Payments Program (SEP 2001) (41 U.S.C. 10a-10d, 19 U.S.C. 2501-2518, and 19 U.S.C. 3301 note).

___ 252.225-7012 Preference for Certain Domestic Commodities (AUG 2000) (10 U.S.C. 2241 note).

___ 252.225-7014 Preference for Domestic Specialty Metals (MAR 1998) (10 U.S.C. 2241 note).

___ 252.225-7015 Preference for Domestic Hand or Measuring Tools (DEC 1991) (10 U.S.C. 2241 note).

___ 252.225-7016 Restriction on Acquisition of Ball and Roller Bearings (DEC 2000) ( __ Alternate I) (DEC 2000) (Section 8064 of Public Law 106-259).

___ 252.225-7021 Trade Agreements (SEP 2001) (19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note).

___ 252.225-7027 Restriction on Contingent Fees for Foreign Military Sales (MAR 1998) (22 U.S.C. 2779).

___ 252.225-7028 Exclusionary Policies and Practices of Foreign Governments (DEC 1991) (22 U.S.C. 2755).

___ 252.225-7029 Preference for United States or Canadian Air Circuit Breakers (AUG 1998) (10 U.S.C. 2534(a)(3)).

___ 252.225-7036 Buy American Act—North American Free Trade Agreement Implementation Act—Balance of Payments Program (MAR 1998) ( __ Alternate I) (SEP 1999) (41 U.S.C. 10a-10d and 19 U.S.C. 3301 note).

___ 252.227-7015 Technical Data—Commercial Items (NOV 1995) (10 U.S.C. 2320).

___ 252.227-7037 Validation of Restrictive Markings on Technical Data (SEP 1999) (10 U.S.C. 2321).

___ 252.243-7002 Requests for Equitable Adjustment (MAR 1998) (10 U.S.C. 2410).

___ 252.247-7023 Transportation of Supplies by Sea (MAR 2000) (__Alternate I) (MAR 2000) (__Alternate II) (MAR 2000) (10 U.S.C. 2631).

___ 252.247-7024 Notification of Transportation of Supplies by Sea (MAR 2000) (10 U.S.C. 2631).

(c) In addition to the clauses listed in paragraph (e) of the Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items clause of this contract (FAR 52.212-5), the Contractor shall include the terms of the following clauses, if applicable, in subcontracts for commercial items or commercial components, awarded at any tier under this contract:

252.225-7014 Preference for Domestic Specialty Metals, Alternate I (MAR 1998) (10 U.S.C. 2241 note).

252.247-7023 Transportation of Supplies by Sea (MAR 2000) (10 U.S.C. 2631).

252.247-7024 Notification of Transportation of Supplies by Sea (MAR 2000) (10 U.S.C. 2631).

(End of clause)