[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15566]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 218, 232 and 252
RIN Number 0750-AH40
Defense Federal Acquisition Regulation Supplement: Updates to Wide Area WorkFlow (DFARS Case 2011-D027)
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 policies on the submission of payment requests and receiving reports in electronic format.
DATES: Effective date: June 29, 2012.
FOR FURTHER INFORMATION CONTACT: Ms. Veronica Fallon, 571-372-6087.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule at 76 FR 71928 on November 21, 2011, to update DFARS policies and procedures for electronic submission of payment requests and receiving reports through Wide Area WorkFlow (WAWF) and TRICARE Encounter Data System (TEDS). WAWF, which electronically interfaces with the primary DoD payment systems, is the accepted DoD system for generating invoices and receiving reports. TEDS is an accepted system for processing payment requests for rendered TRICARE health care services.
The capabilities of WAWF have expanded to enable use in additional environments by a wider variety of users. As such, this rule expands the use of WAWF for submission of payment requests and receiving reports and standardizes processes and instructions on the use of WAWF. The public comment period closed January 20, 2011. Six respondents submitted comments on the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
A. Summary of Significant Changes
Changes to the proposed rule to clarify language were made at 232.7002 Policy, 232.7004 Prescription, and the Payment Clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports. The new payment instruction clause at 252.232-7006, Wide Area WorkFlow Payment Instructions, was changed to more clearly identify WAWF as DoD's method to receive payment requests and receiving reports and clarify language and to clarify instructions for completion of clause fill-ins.
B. Analysis of Public Comments
1. Policies and Procedures
Comment: Several respondents identified an apparent inconsistency with use of the term ``Senior Procurement Executive'' in the Supplementary and Background information and the use of the term ``Service Procurement Executive'' in the proposed change to 232.7002(a)(6).
Response: The correct term is ``Senior Procurement Executive,'' which is incorporated into the final rule.
Comment: A respondent observed that language is confusing to the reader, in both the proposed change to policy at 232.7002(a)(1) and the existing clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports, paragraph (c)(4). Specifically, according to the respondent, the language is unclear that describes what is and is not required to be submitted in electronic form for payment requests and receiving reports when purchases are paid for using a Governmentwide purchase card.
Response: The language of the final rule in both instances noted is revised to reflect clarifying language as suggested by the respondent.
Comment: One respondent requested adding to the rule additional procedures at 232.7003 to allow use of an existing Navy system, PayWeb, for submitting and processing payment requests by universities and nonprofits administered by Office of Naval Research Regional Office.
Response: Consideration of the respondent's comment resulted in no change to the final rule. However, the Department of the Navy plans to issue supplementary guidance to address PayWeb, a front-end system that feeds Electronic Data Interchange to WAWF.
2. Wide Area WorkFlow Payment Instructions Clause
Comment: Three comments addressed paragraph (f)(1) of the clause. One respondent identified that a listed document type is not an allowable document for their office, and that there is a possible conflict in language between this paragraph and the note that follows. Another respondent provided two comments. First, issues were noted with regard to possible scenarios resulting from ambiguous terminology and a lack of identified procedures to address said scenarios. Second, the respondent is unsure the reader will understand the intended use of the note following the paragraph, and requested the note be clarified as to its purpose and intended use.
Response: Regarding the concern of allowable document types, applicable instructions to preclude possible conflicts have been incorporated into the WAWF Web site. A link to the Web site is included in the DFARS clause and in the Procedures Guidance and Information (PGI) text. In addition, since it is the contracting officer who inserts the document type into the clause, there should be no resultant issue. Therefore, no change is made to the language of the rule as a result of this comment.
In response to the concern regarding possible scenarios resulting from ambiguous terminology of the text, the language in question is deleted, leaving a clear statement. Likewise, deletion of this text served to resolve the comment concerning the intended use of the note following the paragraph.
Comment: Two respondents expressed concern with the Routing Data Table at paragraph (f)(3). The respondents indicated that the table may increase the workload of contracting personnel and increase the opportunity for error and inconsistency. Also, the table may not account for all circumstances.
Response: The Routing Data Table along with the instructions for the contracting officer to complete the table is retained in the final rule; however, several of the respondents' suggestions, which clarified a number of table elements, are incorporated into the final rule. DoD retained the Routing Data Table and instructions after considering the following: (1) The possible variation in contract formats and types; (2) the absence of a more acceptable place to identify the local processing office in existing contracts; and (3) in order to increase the ease of use and facilitate contractor compliance.
Comment: One respondent recommended revised language for paragraph (f)(4) to strengthen the rule in consideration of future audits.
Response: The data requirements for documentation to be submitted with specific actions are well defined elsewhere in the regulations (e.g. DFARS Appendix F). Repeating those requirements again in the clause would create redundancy and introduce the possibility of conflict between updates to Appendix F and the clause language.
Comment: Two respondents observed that the clause language for paragraph (g), Payment request follow-up, is not compatible with current systems and does not provide complete information regarding availability of invoice status.
Response: The paragraph (g) clause text is deleted since the capability discussed is now provided for in WAWF. Therefore, inclusion of the paragraph (g) text is not necessary.
Comment: Two respondents noted that paragraph (h), WAWF point of contact, may not be appropriately included; or if included, a better point of contact could be provided.
Response: Former paragraph (h), which is now paragraph (g) in the final rule, is updated to include subparagraphs so that an additional point of contact for technical issues, the WAWF helpdesk, is also listed.
Comment: One respondent identified a disparity between language in the existing clause at 252.232.7003, Electronic Submission of Payment Requests and Receiving Reports, paragraph (b), and the proposed clause paragraph (b) regarding ``preferred method'' versus ``contractor shall''.
Response: WAWF is the DoD system to electronically process payment requests and receiving reports, therefore the word ``preferred'' was deleted in the final rule. Further, in this same paragraph (b); language regarding alternate invoicing methods as agreed to by the parties is also deleted. The remaining language demonstrates DoD's effort to meet the intent of the E-Government Act and the Paperwork Reduction Act in minimizing the number of ways contractors must interact with the Government.
3. Definitions
Comment: The value of the definitions at paragraph (a) of the proposed new clause at 252.232-70XX was questioned. The respondent suggests deleting definitions from the clause as definitions are provided as part of the referenced WAWF training.
Response: Definitions are customarily included in the DFARS clause to ensure immediate understanding of the terminology of the clause. As suggested, the definition of ``local processing office'' has been edited to convey a generic application.
4. Prescription
Comment: Several comments addressed the proposed change to the prescription at 232.7004(a) and following paragraphs (1) through (6). The respondents expressed that paragraphs (1) through (6) as a whole may be confusing to the reader regarding whether and when use of WAWF is required or an exception applies.
Response: To alleviate potential confusion in the prescription at 232.7004(a), the proposed references to subparagraphs are deleted.5. Web Site Links
Comment: A respondent stated that the Web site links provided were not working for the new proposed clause at 252.232-70XX.
Response: The Web site links included for this final rule are active and accurate.
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 expects that this rule may 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. Therefore, a Final Regulatory Flexibility Analysis has been prepared and is summarized as follows:
The rule incorporates WAWF's new capability of capturing receiving reports for contracts paid with a Governmentwide commercial purchase card and clarifies exceptions to the use of WAWF. The rule also consolidates and standardizes instructions to contractors on how to use the WAWF application. Furthermore, it eliminates locally defined methods that, in some cases, cause confusion and inefficiencies. It also incorporates the use of TEDS for medical services requiring Health Insurance Portability and Accountability Act data not handled by WAWF.
DoD made small business awards to 47,000 companies in Fiscal Year 2011. With the exception of less than 7,000 companies that only received awards paid with a purchase card, this rule will simplify procedures by allowing contractors to use the same payment process and systems for all DoD shipments.
This rule does not impose any new reporting or record keeping requirements.
The rule does not duplicate, overlap, or conflict with any other Federal rules. No significant alternatives have been identified that would accomplish the stated objectives of this rule.
V. Paperwork Reduction Act
This rule does not impose any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 218, 232 and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 218, 232, and 252 are amended as follows:
1. The authority citation for 48 CFR parts 218, 232, and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 218--EMERGENCY ACQUISITIONS
2. Section 218.170(j) is revised to read as follows:
218.170 Additional acquisition flexibilities.
* * * * *
(j) Electronic submission and processing of payment requests. Exceptions to the use of Wide Area WorkFlow are at 232.7002(a).
* * * * *
PART 232--CONTRACT FINANCING
3. Section 232.7002(a) is revised to read as follows:
232.7002 Policy.
(a)(1) Contractors shall submit payment requests and receiving reports in electronic form, except for--
(i) Classified contracts or purchases when electronic submission and processing of payment requests could compromise the safeguarding of classified information or national security;
(ii) Contracts awarded by deployed contracting officers in the course of military operations, including, but not limited to, contingency operations as defined in 10 U.S.C. 101(a)(13) or humanitarian or peacekeeping operations as defined in 10 U.S.C. 2302(8), or contracts awarded by contracting officers in the conduct of emergency operations, such as responses to natural disasters or national or civil emergencies, when access to Wide Area WorkFlow by those contractors is not feasible;
(iii) Purchases to support unusual or compelling needs of the type described in FAR 6.302-2, when access to Wide Area WorkFlow by those contractors is not feasible;
(iv) Cases in which DoD is unable to receive payment requests or possible acceptance in electronic form;
(v) Cases in which the contracting officer administering the contract for payment has determined, in writing, that electronic submission would be unduly burdensome to the contractor. In those cases, the contracting officer administering the contract shall furnish a copy of the determination to their Senior Procurement Executive; and
(2) When the Governmentwide commercial purchase card is used as the method of payment, only submission of the receiving report in electronic form is required.
* * * * *
4. Section 232.7003 is amended by revising paragraphs (b) and (c) to read as follows:
232.7003 Procedures.
* * * * *
(b) For payment of commercial transportation services provided under a Government rate tender or a contract for transportation services, the use of a DoD-approved electronic third party payment system or other exempted vendor payment/invoicing system (e.g., PowerTrack, Transportation Financial Management System, and Cargo and Billing System) is permitted.
(c) For submitting and processing payment requests and receiving reports for rendered health care services, use of TRICARE Encounter Data System as the electronic format is permitted.
5. Section 232.7004 is revised to read as follows:
232.7004 Contract clauses.
(a) Except as provided in 232.7002(a), use the clause at 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports, in solicitations and contracts.
(b) Use the clause at 252.232-7006, Wide Area WorkFlow Payment Instructions, when 252.232-7003 is used and neither 232.7003 (b) nor
(c) apply. See PGI 232.7004 for instructions on completing the clause.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 252.232-7003 is amended--
a. In the introductory text by removing the reference ``232.7004'' and adding in its place ``232.7004(a)'';
b. By removing the clause date ``(MAR 2008)'' and adding in its place ``(JUN 2012)'';
c. By adding paragraph (a)(4);
d. By removing paragraphs (c)(1) and (2);
(e) By redesignating paragraphs (c)(3) and (4) as paragraphs (c)(1) and (2), respectively;
(f) By removing the word ``or'' at the end of newly redesignated paragraph (c)(1);
(g) By removing the period at the end of newly redesignated paragraph (c)(2) and adding a semicolon in its place; and
(h) By adding new paragraphs (c)(3) and (4).
The additions read as follows:
252.232-7003 Electronic Submission of Payment Requests and Receiving Reports.
* * * * *
(a) * * *
(4) ``Receiving report'' means the data required by the clause at 252.246-7000, Material Inspection and Receiving Report.
* * * * *
(c) * * *
(3) DoD makes payment for rendered health care services using the TRICARE Encounter Data System (TEDS) as the electronic format; or
(4) When the Governmentwide commercial purchase card is used as the method of payment, only submission of the receiving report in electronic form is required.
* * * * *
7. Section 252.232-7006 is added to read as follows:
252.232-7006 Wide Area WorkFlow Payment Instructions.
As prescribed in 232.7004(b), use the following clause:
WIDE AREA WORKFLOW PAYMENT INSTRUCTIONS (JUN 2012)
(a) Definitions. As used in this clause--
Department of Defense Activity Address Code (DoDAAC) is a six position code that uniquely identifies a unit, activity, or organization.
Document type means the type of payment request or receiving report available for creation in Wide Area WorkFlow (WAWF).
Local processing office (LPO) is the office responsible for payment certification when payment certification is done external to the entitlement system.
(b) Electronic invoicing. The WAWF system is the method to electronically process vendor payment requests and receiving reports, as authorized by DFARS 252.232-7003, Electronic Submission of Payment Requests and Receiving Reports.
(c) WAWF access. To access WAWF, the Contractor shall--
(1) Have a designated electronic business point of contact in the Central Contractor Registration at https://www.acquisition.gov; and
(2) Be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self-registration available at this Web site.
(d) WAWF training. The Contractor should follow the training instructions of the WAWF Web-Based Training Course and use the Practice Training Site before submitting payment requests through WAWF. Both can be accessed by selecting the ``Web Based Training'' link on the WAWF home page at https://wawf.eb.mil/.
(e) WAWF methods of document submission. Document submissions may be via Web entry, Electronic Data Interchange, or File Transfer Protocol.
(f) WAWF payment instructions. The Contractor must use the following information when submitting payment requests and receiving reports in WAWF for this contract/order:
(1) Document type. The Contractor shall use the following document type(s).
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(Contracting Officer: Insert applicable document type(s). Note: If a ``Combo'' document type is identified but not supportable by the Contractor's business systems, an ``Invoice'' (stand-alone) and ``Receiving Report'' (stand-alone) document type may be used instead.)
(2) Inspection/acceptance location. The Contractor shall select the following inspection/acceptance location(s) in WAWF, as specified by the contracting officer.
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(Contracting Officer: Insert inspection and acceptance locations or ``Not applicable.'')
(3) Document routing. The Contractor shall use the information in the Routing Data Table below only to fill in applicable fields in WAWF when creating payment requests and receiving reports in the system.
Routing Data Table*
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Field Name in WAWF Data to be entered in WAWF
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Pay Official DoDAAC
Issue By DoDAAC
Admin DoDAAC
Inspect By DoDAAC
Ship To Code
Ship From Code
Mark For Code
Service Approver (DoDAAC)
Service Acceptor (DoDAAC)
Accept at Other DoDAAC
LPO DoDAAC
DCAA Auditor DoDAAC
Other DoDAAC(s)
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(*Contracting Officer: Insert applicable DoDAAC information or ``See schedule'' if multiple ship to/acceptance locations apply, or ``Not applicable.'')
(4) Payment request and supporting documentation. The Contractor shall ensure a payment request includes appropriate contract line item and subline item descriptions of the work performed or supplies delivered, unit price/cost per unit, fee (if applicable), and all relevant back-up documentation, as defined in DFARS Appendix F, (e.g. timesheets) in support of each payment request.
(5) WAWF email notifications. The Contractor shall enter the email address identified below in the ``Send Additional Email Notifications'' field of WAWF once a document is submitted in the system.
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(Contracting Officer: Insert applicable email addresses or ``Not applicable.'')
(g) WAWF point of contact. (1) The Contractor may obtain clarification regarding invoicing in WAWF from the following contracting activity's WAWF point of contact.
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(Contracting Officer: Insert applicable information or ``Not applicable.'')
(2) For technical WAWF help, contact the WAWF helpdesk at 866-618-5988.
(End of clause)
[FR Doc. 2012-15566 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P
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[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15563]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
RIN 0750-AH73
Defense Federal Acquisition Regulation Supplement; Acquisition of Tents and Other Temporary Structures (DFARS Case 2012-D015)
AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).
ACTION: Interim rule.
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SUMMARY: DoD is issuing an interim rule to implement sections of the National Defense Authorization Act for Fiscal Year 2012 that address the acquisition of tents and other temporary structures.
DATES: Effective date: June 29, 2012.
Comment date: Comments are due by August 28, 2012.
ADDRESSES: Submit comments identified by DFARS Case 2012-D015, using any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inserting ``DFARS Case 2012-D015'' under the heading ``Enter keyword or ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 2012-D015.'' Follow the instructions provided at the ``Submit a Comment'' screen. Please include your name, company name (if any), and ``DFARS Case 2012-D015'' on your attached document.
[cir] Email: dfars@osd.mil. Include DFARS Case 2012-D015 in the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Amy G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule amends DFARS subpart 225.70 and the associated DFARS clauses at 252.212-7001 and 252.225-7012, in order to implement sections 368 and 821 of the
National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81).
Section 368 requires award of contracts that provide the best value, when acquiring tents and other temporary structures, regardless of whether purchased by DoD or by another agency on behalf of DoD.
Section 821 amends 10 U.S.C. 2533a (the ``Berry Amendment''), to extend the restriction requiring acquisition of domestic tents to include the structural components of tents, applicable to acquisitions that exceed the simplified acquisition threshold. There is also an exception for domestic nonavailability (see DFARS 225.7002-2).
The interim rule provides a definition of ``structural component of a tent'' and also provides examples of the type of temporary structures covered by this regulation.
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 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.
III. Regulatory Flexibility Act
DoD does not expect this interim 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. However, an initial regulatory flexibility analysis has been prepared and is summarized as follows:
The objectives of this interim rule are to--
Require that contracts for the acquisition of tents and other temporary structures provide best value, regardless of whether purchased by DoD or by another agency on behalf of DoD; and
Extend the domestic source restriction of 10 U.S.C. 2533a (the ``Berry Amendment'') to cover the structural components of tents, in order to promote the use of domestic materials and enhance growth of the United States economy.
The legal basis for this interim rule is sections 368 and 821 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81).
The requirement to award contracts that provide best value to the Government does not have any impact on small business entities, because that is already a general requirement for all acquisitions.
The domestic source restriction on the structural components of tents may affect approximately 40 or less small business concerns at the prime contract level. Review of the Fiscal Year 2011 data on acquisition of items with product or service code 8340 (tents or tarpaulins) identified 49 actions with small business concerns (contracts or orders), estimated value of $48.6 million, of which about 10 percent appeared to be for other than tents (e.g., prefabricated metal buildings and components, metal household furnishings, or electrical equipment). The Federal Procurement Data System does not provide data on components, so it is not known the extent to which the providers of tents currently utilize domestic or foreign structural components. An exception may be granted if a component is domestically nonavailable. However, this rule promotes the use of domestic components, and should, therefore, be favorable to small entities that provide domestic structural components of tents. The requirements of the rule will not apply below the simplified acquisition threshold.
This rule does not impose any reporting or recordkeeping requirements.
The rule does not duplicate, overlap, or conflict with any other Federal rules.
DoD did not identify any significant alternatives that would accomplish the stated objectives of the statute. The rule specifically implements the statutory requirement.
DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D015) in correspondence.
IV. Applicability
This interim rule does not apply below the simplified acquisition threshold. Section 821 amends 10 U.S.C. 2533a (the ``Berry Amendment''), which specifically exempts acquisitions below the simplified acquisition threshold. The ``Berry Amendment'', implemented at DFARS clause 252.225-7012, Preference for Certain Domestic Commodities, specifically applies to contracts or subcontracts for the acquisition of commercial items that are articles, items, specialty metals, or tools covered by the ``Berry Amendment'' (including tents and components of tents) (see section 8109 of Pub. L. 104-208) and is included in the clause list in DFARS clause 252.212-7001, Contract Terms and Conditions required to Implement Statutes or Executive Orders Applicable to Defense Acquisitions of Commercial Items.
Section 368 only imposes requirements on the internal operating procedures of DoD, and does not address application below the simplified acquisition threshold. Most acquisitions of tents and other temporary structures exceed the simplified acquisition threshold. In accordance with 41 U.S.C. 1901, simplified acquisition procedures are to be used to promote efficiency and economy in contracting to avoid unnecessary burdens for agencies and contractors. Written acquisition plans are not required for acquisitions below the simplified acquisition threshold. Therefore, this rule does not apply to acquisitions of tents and other temporary structures below the simplified acquisition threshold.
V. 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).
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary of Defense, that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements sections 368 and 821 of the National Defense Authorization Act for Fiscal Year 2012. This requirement became effective upon enactment, December 23, 2011. This action is necessary in order to enable contracting officers to comply with this new requirement, which will promote the use of domestic materials and enhance growth of the United States economy. Pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), comments received in response to this interim rule will be considered in the formation of the final rule.
List of Subjects in 48 CFR Part 225 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 225 and 252 are amended as follows:
1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
2. Amend section 225.7001 by revising paragraph (e) to read as follows:
225.7001 Definitions.
* * * * *
(e) Structural component of a tent is defined in the clause at 252.225-7012, Preference for Certain Domestic Commodities.
3. Amend section 225.7002-1 by revising paragraph (a)(3) to read as follows:
225.7002-1 Restrictions.
* * * * *
(a) * * *
(3) Tents and the structural components of tents, tarpaulins, or covers. In addition, in accordance with section 368 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81)--
(i) When acquiring tents or other temporary structures for use by the Armed Forces, the contracting officer shall award contracts that provide the best value (see FAR 15.101). Temporary structures covered by this paragraph (a)(3)(i) are nonpermanent buildings, including tactical shelters, nonpermanent modular or pre-fabricated buildings, or portable or relocatable buildings, such as trailers or equipment configured for occupancy (see also DFARS 246.270-2)). Determination of best value includes consideration of the total life-cycle costs of such tents or structures, including the costs associated with any equipment, fuel, or electricity needed to heat, cool, or light such tents or structures (see FAR 7.105(a)(3)(i) and PGI 207.105(a)(3)(i)).
(ii) These requirements apply to any agency or department that acquires tents or other temporary structures on behalf of DoD (see FAR 17.503(d)(2)).
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
4. Amend section 252.212-7001 in paragraph (b)(9) by removing ``(JUN 2010)'' and adding ``(JUN 2012)'' in its place.
5. Amend section 252.225-7012--
a. By removing the clause date ``(JUN 2010)'' and adding ``(JUN 2012)'' in its place;b. In paragraph (a), by removing the numerical designations (1) through (5) from the definitions and adding, in alphabetical order, the definition of ``Structural component of a tent''; and
c. By revising paragraph (b)(3).
The addition and revision read as follows:
252.225-7012 Preference for Certain Domestic Commodities.
* * * * *
(a) * * *
Structural component of a tent--
(i) Means a component that contributes to the form and stability of the tent (e.g., poles, frames, flooring, guy ropes, pegs);
(ii) Does not include equipment such as heating, cooling, or lighting.
* * * * *
(b) * * *
(3) Tents and structural components of tents, tarpaulins, and covers.
* * * * *
[FR Doc. 2012-15563 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P
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[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15564]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
RIN 0750-AH75
Defense Federal Acquisition Regulation Supplement: New Qualifying Country--Czech Republic (DFARS Case 2012-D043)
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 add the Czech Republic as a qualifying country.
DATES: Effective date: June 29, 2012.
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to add the Czech Republic as a qualifying country. On April 18, 2012, the Secretary of Defense signed a new reciprocal defense procurement agreement with the Czech Minister of Defense. The agreement removes discriminatory barriers to procurements of supplies and services produced by industrial enterprises of the other country to the extent mutually beneficial and consistent with national laws, regulations, policies, and international obligations. The agreement does not cover construction or construction material.
II. Publication of This Final Rule for Public Comment Is Not Required by Statute
``Publication of proposed regulations'', 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment. Adding the Czech Republic to the list of 21 other countries that have similar reciprocal defense procurement agreements with DoD does not alter the substantive meaning of the basic DoD policy on contracting with qualifying country sources. Accordingly, the change does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, does not have a significant effect beyond the internal operating procedures of DoD, and will not have a significant cost or administrative impact on contractors or offerors.
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
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.
V. Paperwork Reduction Act
This rule affects the certification and information collection
requirements in the provisions at DFARS 252.225-7000, 252.225-7020, currently approved under OMB Control Number 0704-0229, titled DFARS Part 225, Foreign Acquisition, and Associated Clauses, in the amount of 57,235 hours, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because it merely shifts the category under which items from the Czech Republic must be listed.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 225 and 252 are amended as follows:
1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
225.003 [Amended]
2. Amend section 225.003 in the definition ``Qualifying country'', paragraph (10), by adding ``Czech Republic'' in alphabetical order.
225.872-1 [Amended]
3. Amend section 225.872-1, paragraph (a), by adding ``Czech Republic'' in alphabetical order.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
4. Amend section 252.212-7001 in paragraph (b)(12) by removing ``(MAY 2012)'' and adding ``(JUN 2012)'' in its place.
252.225-7001 [Amended]
5. Amend section 252.225-7001, paragraph (a), definition of ``Qualifying country,'' by adding ``Czech Republic'' in alphabetical order.
6. Amend section 252.225-7002 by removing the clause date ``(APR 2003)'' and adding ``(JUN 2012)'' in its place and revising paragraph (a) to read as follows:
252.225-7002 Qualifying Country Sources as Subcontractors.
* * * * *
(a) Definition. Qualifying country, as used in this clause, means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland
* * * * *
252.225-7012 [Amended]
7. Amend section 252.225-7012 in paragraph (a)(3) by adding ``Czech Republic'' in alphabetical order.
8. Amend section 252.225-7017 by removing the clause date ``(MAY 2012)'' and adding ``(JUN 2012)'' in its place and by revising the definition of ``Qualifying country,'' in paragraph (a) to read as
252.225-7017 Photovoltaic Devices.
* * * * *
(a) * * *
Qualifying country means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland
* * * * *
252.225-7021 [Amended]
9. Amend section 252.225-7021, paragraph (a), definition of ``Qualifying country,'' by adding ``Czech Republic'' in alphabetical order.
10. Amend section 252.225-7036 by revising the definition of ``Qualifying country,'' in paragraph (a) to read as follows:
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments Program.
* * * * *
(a) * * *
``Qualifying country'' means a country with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country, and the memorandum or agreement complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C. 2457. Accordingly, the following are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland
* * * * *
[FR Doc. 2012-15564 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P
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[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15569]
Vol. 77
Friday,
No. 126
June 29, 2012
Part IV
Department of Defense
Defense Acquisition Regulations System
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48 CFR Parts 205, 208, 212, et al.
Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Only One Offer (DFARS Case 2011-D013); Defense Federal Acquisition Regulation Supplement: Shipping Instructions (DFARS Case 2011-D052) and Defense Federal Acquisition Regulation Supplement: Applicability of Hexavalent Chromium Policy to Commercial Items (DFARS Case 2011-D047); Final Rules
Federal Register / Vol. 77 , No. 126 / Friday, June 29, 2012 / Rules and Regulations
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 205, 208, 212, 214, 215, 216, 252
RIN 0750-AH11
Defense Acquisition Regulations System; Defense Federal Acquisition Regulation Supplement; Only One Offer (DFARS Case 2011-D013)
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 address acquisitions using competitive procedures in which only one offer is received. This rule implements a DoD Better Buying Power initiative. The revisions to this rule are part of DoD's retrospective plan under Executive Order 13563 completed in August 2011.
DATES: Effective Date: June 29, 2012.
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-372-6106.
SUPPLEMENTARY INFORMATION: DoD's full plan can be accessed at http://exchange.regulations.gov/exchange/topic/eo-13563.
I. Background
DoD published a proposed rule in the Federal Register at 76 FR 44293 on July 25, 2011, to address acquisitions using competitive procedures in which only one offer is received. This rule was initiated to implement one of the aspects of the initiative on promoting real competition that was presented by the Under Secretary of Defense for Acquisition, Technology, and Logistics (AT&L) in a memorandum dated November 3, 2010. This memorandum was further implemented by memoranda from the Director, Defense Procurement and Acquisition Policy, dated November 24, 2010, and April 27, 2011.
Some of the other background events leading up to publication of this rule are summarized as follows:
In 2007, an Acquisition Advisory (SARA) panel report discussed methods to encourage competition focused on longer solicitation periods as well as improved requirements generation and market research/industry communication.
In 2008, the Office of Management and Budget and Office of Federal Procurement Policy issued a memorandum detailing agencies' efforts to improve competition where only one offer was received. These efforts involved such steps as limiting contract length, minimizing unique or brand name specifications, and enhancing acquisition planning.
In 2010, the Government Accountability Office studied reasons why only one offer is received, and concluded that several factors contributed, such as a strong incumbent, restrictive Government requirements, and/or bundling of requirements into larger acquisitions.
The comment period closed on September 23, 2011, but was re-opened on September 27, 2011 (76 FR 59623) through October 7, 2011. DoD received comments on the proposed rule from 19 respondents.
II. Discussion and Analysis of the Public Comments
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
A. Summary of Significant Changes From the Proposed Rule 1. DFARS 215.371-1. A section on policy has been added at DFARS 215.371-1 to replace the proposed paragraph DFARS 215.371(a). The policy statement is completely rewritten to shift the emphasis away from whether the circumstances described at FAR 15.403-1(c)(1)(ii) constitute adequate price competition, to an emphasis on the objectives of the rule, i.e., to increase competition and, if only one offer is received nevertheless, to make sure that the price is fair and reasonable and that the statutory requirements for obtaining certified cost or pricing data are met.
2. DFARS 215.371-2. A section has been added to address the efforts to promote competition, similar to the coverage in the proposed rule at DFARS 215.371(c)(1). In response to public comments, two FAR references have been added to provide considerations on revising requirements to promote competition (FAR 6.502(b) and 11.002).
3. DFARS 215.371-3 has been added to address the process for obtaining fair and reasonable prices, replacing the proposed paragraph DFARS 215.371(c)(2). The contracting officer is not required to obtain further cost or pricing data if the contracting officer determines that the offered price is fair and reasonable on the basis of cost or price analysis and that adequate price competition exists, in accordance with FAR 15.403-1(c)(1)(ii), or another exception to the statutory requirement for certified cost or pricing data applies (see Truth in Negotiations Act (10 U.S.C. 2306a) and FAR 15.403-4). Otherwise, the contracting officer must obtain additional cost or pricing data, and that data must be certified, unless an exception to the requirement for certified cost or pricing data applies. The following table provides a summary of the requirement for cost or pricing data and whether the data must be certified, depending on whether the contracting officer can determine the price to be fair and reasonable and whether an exception to the requirement for certified cost or pricing data applies.
Circumstance 1 |
Circumstance 2 |
Circumstance 3 |
Circumstance 4 |
Circumstance 5 | |
Contracting officer (c.o.) determines price fair & reasonable? |
YES |
YES |
YES |
NO |
NO |
C.o. determines adequate price competition? (approved 1 level above c.o.) |
YES |
NO |
NO |
X* |
X |
Another TINA exception applies? |
YES |
NO |
YES |
NO | |
Cost or pricing data required? |
NO |
NO |
YES |
YES |
YES |
Data must be certified? |
N/A |
N/A |
YES |
NO |
YES |
* Note that the contracting officer cannot determine that adequate price competition exists if cannot determine that the price is fair and reasonable.
4. Two exceptions have been added at DFARS 215.371-4 (proposed at DFARS 215.371(e)):
An exception to the 30-day resolicitation period has been added to address the application to small business set-asides.
The final rule states that it does not apply to broad agency announcements. 5. Waivers are now addressed at DFARS 215.371-5 (proposed at DFARS 215.371(d)), but the coverage of waivers is otherwise unchanged.
6. The proposed statement at DFARS 215.403-1(c)(1)(B) has been modified to reference back to the procedures at DFARS 215.371-3 for ensuring a fair and reasonable price if only one offer is received. DFARS 215.371-3 makes it clear that adequate price competition, as described at FAR 15.403-1(c)(1)(ii), cannot be used for the purpose of determining that a price is fair and reasonable.
7. The rule no longer addresses acquisitions under FAR subpart 13.5, because that statutory authority has expired.
8. Statements have been added at DFARS 208.404(a) and 214.404-1(2) to specify clearly the deviation from the statements in the corresponding FAR sections.
B. Analysis of Public Comments
1. Meaning of ``Only One Offer''
Comment: One respondent stated that what constitutes one offer should be more clearly defined. The respondent questioned whether this includes only technically acceptable, timely offers.
Response: For the purpose of DFARS 215.371, an offer includes any timely offer or late offer accepted by the contracting officer. There is no requirement for each offer to meet the requirements at FAR 15.403-1(c)(1)(i) in order to count as more than one offer received. However, if after evaluations the contracting officer determines only one responsive offer was received, the contracting officer will need to review the standards at FAR 15.403-1(c) to determine if adequate price competition exists or another exception applies, and take the appropriate steps to ensure a fair and reasonable price.
Comment: One respondent questioned whether this rule is applicable to the solicitation of quotations. The respondent noted that quotations are solicited routinely when using the procedures of FAR subpart 8.4.
Response: This rule is applicable to quotes as well as offers. Quotes should be treated the same as offers, for the purposes of this rule. The term ``offer'' used in the provision is comprehensive enough to apply to all competitive acquisitions subject to the final rule. Specifically, the term ``offer'' appropriately applies to acquisitions exceeding the simplified acquisition threshold conducted under FAR parts 8, 12, 14, 15, and 16. FAR defines ``offer'' to include responses to invitations for bids (sealed bidding) and responses to requests for proposals (negotiation), but to exclude responses to requests for quotations (RFQs). However, DFARS parts 208 and 216 already use the term ``offer'' in reference to orders awarded under those subparts. Finally, the final rule does not apply to acquisitions below the simplified acquisition threshold awarded based on quotations received. Therefore, the provisions in the final rule, because they use the term ``offer,'' can be used appropriately for competitions under FAR parts 8, 12, 14, 15, and 16 exceeding the simplified acquisition threshold.
2. Promoting Competition
a. General
Comment: One respondent asked whether the policy should promote the receipt of two or more offers on all competitive procedures exceeding the simplified acquisition threshold.
Response: The intent of the DoD Better Buying Power initiative is to promote competition on all competitive solicitations. The policy at DFARS 215.371-1(a) does promote the receipt of two or more offers in response to competitive solicitations, unless an exception applies.
Comment: One respondent stated that the proposed rule approach to increasing competition ``mistakenly conflates a post-proposal requirement for submitting cost or pricing data after receipt of offer with steps needed to increase DoD competition, but does nothing to address the root causes of the lack of competition.''
Response: The rule requires the contracting officer to consult with the requiring activity as to whether the requirement should be revised in order to promote more competition and requires resolicitation if the solicitation allowed fewer than 30 days for receipt of proposals. The post-proposal requirement for cost or pricing data addresses the second objective of the rule--to obtain fair and reasonable prices.
Comment: One respondent stated that the rule may result in decreased competition. This respondent pointed to unintended reduction in the number of competitors and in the ability to maintain long term strategic defense capabilities, because of a shift to ``lowest price possible.'' Further, according to this respondent, some potential offerors may not be willing to participate if they may subsequently be required to submit cost or pricing data.
Response: The intent of the rule is not to seek the lowest price, but a best value at a competitive price. If two or more offerors respond to a requirement or if the contracting officer determines that the offered price is fair and reasonable and an exception to the requirement for certified cost or pricing data applies, then the contracting officer is not required to ask for additional cost or pricing data.
b. Time Period for Response
Comment: Various respondents were in favor of extending solicitation periods to allow potential offerors more time to assemble a competitive offer. One respondent stated that this is generally a step in the right direction, and another stated that this will likely result in increased competition. One respondent stated that the proposed 30 additional days is both reasonable and appropriate. Response: None required.
Comment: One respondent stated that it is difficult to understand
why any solicitation would be advertised for less than 30 days if not covered by one of the excepted circumstances. The respondent recommended that DoD should issue conforming instructions that all solicitations must comport with the rule at FAR 5.203, except as specified in the proposed exception at DFARS 215.371(e)(1)(ii) (now at 215.371-4) for contingencies. FAR 5.203(c) requires agencies to allow at least a 30-day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold, except for acquisition of commercial items (paragraph (a)) or in the general category of ``annual forecast'' (paragraph (h)).
This respondent also stated that adding transactional process time in all cases where only a single offer is received in response to a competitive solicitation is contrary to sound acquisition policy. Response: Federal Supply Schedules and indefinite-delivery/indefinite-quantity contracts allow for shorter solicitation times. The final rule does not require added transactional time in all cases. Encouraging competition is sound acquisition policy. The rule also allows the head of the contracting activity to waive the 30-day solicitation requirement, when appropriate.
Comment: One respondent was concerned that resoliciting will expose the fact to industry prematurely that there was only one offeror. Since this respondent saw little probability that the additional 30 days would result in additional offerors, this respondent foresaw that the offeror would not reduce the price, but would raise the price under the resolicitation.
Response: If there is still only one offer after resolicitation and negotiations ensue, the rule states that the contracting officer should not negotiate a higher price than was originally proposed. As defined in FAR 2.101, ``should'' means ``an expected course of action unless inappropriate for a particular circumstance.'' An offeror raising the price because there is no competition would not be an appropriate reason for negotiating a higher price.
Comment: Another respondent stated that by virtually mandating a 30-day solicitation period, this rule will delay the acquisition of critical items and, in many cases, not offer any cost savings. This respondent recommended use of other methods than resolicitation for determining price reasonableness if it is believed that resolicitation will not result in reduced pricing.
Response: The Government does not require that all solicitations be announced for 30 days. If market research indicates a commercial market with multiple potential offerors that will be able to respond in fewer than 30 days, then the contracting officer may issue the solicitation for fewer than 30 days. Resolicitation is used to increase competition, not as a method to determine price reasonableness. For specifics with regard to application in FAR parts 12 and 16, see also the responses in sections II.B.6.b. and 6.d. of this preamble.
Comment: One respondent requested that the new rule should specify which parts of the DFARS are subject to the 30-day requirement.
Response: The rule specifies the parts to which it is applicable (DFARS parts 205, 208, 212, 214, 215, and 216). It may apply indirectly to other parts to the extent that the acquisition procedures of these parts are used. An exception has been added to state specifically that the rule does not apply to broad agency announcements. An exception to the 30-day resolicitation requirement, if only one offer is received, has also been added for small business set-asides.
c. Requirements
Comment: Several respondents agreed that encouraging revised statements of work in appropriate circumstances would likely result in increased competition, and were in favor of these proposed revisions. One respondent stated that the reason why only one offer was received in part is likely because the requirement is too restrictive in its content, so that rewording the requirement can facilitate more offers.
Several respondents stated that the proposed rule did not adequately address the process for amending the solicitation when only one offer is received due to flawed solicitation requirements, specifications, contract types, etc. One respondent stated that DoD should set forth guidelines and/or criteria for determining when and how a solicitation should be revised.
Response: It is a duty of the competition advocate to challenge requirements that are not stated in terms of functions to be performed, performance required, or essential physical characteristics and identify any condition or action that has the effect of unnecessarily restricting competition (FAR 6.502(b)(1)). FAR 11.002 provides policy on stating requirements in a way to maximize competition. A cross reference to these FAR citations has been added at DFARS 215.371-2(a).
3. Fair and Reasonable Prices
a. Relationship Between Adequate Price Competition and Determination of Fair and Reasonable Price
FAR references:
Current coverage at FAR 15.403-1(c) provides three circumstances in which a price is based on adequate price competition, for the purpose of deciding whether there is an exemption to the requirement for certified cost or pricing data:
In the first circumstance, two or more responsible offerors, competing independently, submit priced offers that satisfy the Government's expressed requirement, if award will be made to the offeror whose proposal represents the best value where price is a substantial factor in source selection, and there is no finding that the price of the otherwise successful offeror is unreasonable. In this circumstance, there is a presumption of price reasonableness. Any finding that the price is unreasonable must be supported by a statement of the facts and approved at a level above the contracting officer.
In the second circumstance, there was a reasonable expectation, based on market research, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation's expressed requirement, even though only one offer is received from a responsible offeror; and the determination that the proposed price is based on adequate price competition and is reasonable, must be approved at a level above the contracting officer. This standard for adequate price competition was added to the two pre-existing standards in the FAR in October 1995 (FAC 90-32) as a result of sections 1202 and 1251 of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 105-355). These sections required the FAR to provide clear standards for application of the exceptions to the requirement for submission of cost or pricing data (including adequate price competition).
In the third circumstance, price analysis clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or similar items, adjusted to reflect changes in market conditions under contracts that resulted from adequate price competition. Note that the requirement that price analysis be based on contracts that resulted from adequate price competition does not cover buys in which the price is determined fair and reasonable based on certified cost or pricing data from previous production buys. This standard has been in the regulations since May 1964, when adequate price competition was first addressed in the Armed Services Procurement Regulation (3-807.1(b)).
Comment: One respondent fully supported DoD's proposal that 30-day solicitations that produce only one offer should trigger a price or cost analysis. This respondent stated that it has long advocated the position that adequate price competition does not exist where only one offer is received pursuant to a competitive solicitation.
Other respondents wanted to preserve the exception at FAR 15.403-1(c)(1)(ii) as a valid exemption from the requirement for certified cost or pricing data, while some acknowledged the need for better enforcement of FAR 15.403-1(c)(1)(ii)(B), i.e., the need to determine at a level above the contracting officer that the price is reasonable.
One respondent had reservations about the apparent elimination of agency discretion to find adequate price competition when a single offer is received, following the expectation of multiple offers. The respondent expressed concern that because the FAR does not reflect the same approach, there is a risk of confusion in the acquisition community. This respondent cited a GAO 2010 study, which recommended case-by-case analysis of single offers, not elimination of the discretion to find adequate price competition when a single offer is received. This respondent also quoted a 2009 DoD statement that ``the receipt of a single offer does not necessarily indicate a lack of competition (DoD's 2009 Competition Report).
Several respondents stated that the current FAR reflects the processes required of the contracting officer to protect DoD's interests in a fair and reasonable price in those situations where competition was expected, but, for whatever reason, is not achieved.
Another respondent considered that the requirement at FAR 15.403-1(c)(1)(ii) has been misused, because contracting officers confuse the adequate price competition definition of expected competition in the exception as also covering the adequate price competition pricing method of comparing proposals in FAR 15.404-1(b)(2)(i). FAR 15.404-1(b)(2)(i) states that one price analysis technique is ``Comparison of proposed prices received in response to the solicitation. Normally, adequate price competition establishes a fair and reasonable price (see FAR 15.403-1(c)(1)).'' The respondent recommended that we clarify the need for separate price analysis before concluding that the standard for adequate price competition has been met.
Similarly, another respondent recommended more rigorous enforcement of the existing price reasonableness test in FAR 15.403-1(c)(1)(ii) and (iii) for adequate price competition, without further regulatory change to prohibit DoD contracting officers from using the exception. Another respondent concurred that the problem is not the tool but the improper use of the tool. The respondent recommended maintaining the standards at FAR 15.403-1(c)(1)(ii). A third respondent stated that current methods are adequate to attain the desired benefit, but without ``completely undercutting the existing acquisition process.''
Response: In response to public comments, DoD has reassessed the proposed statement of policy at DFARS 215.371 in order to better reflect the fundamental purpose of the rule. The policy statement at DFARS 215.371-1 has been revised to clarify that if only one offer is received in response to a competitive solicitation, it is DoD policy--
To take the required actions to promote competition; and
To ensure, if the steps to promote competition still do not result in more than one offer, a fair and reasonable price and compliance with the statutory requirements for certified cost or pricing data, unless an exception applies.
The proposed rule statement that the circumstance of ``reasonable expectation * * * that two or more offerors, competing independently, would submit priced offers,'' as further described at FAR 15.403-1(c)(1)(ii), does not constitute adequate price competition if only one offer is received'' is not included in the final rule. The second element in the statement of policy, which reflects one of the ultimate goals of the proposed rule, shifts the focus from determining the existence of ``adequate price competition'' to achieving a ``fair and reasonable price.''
There are two citations in the FAR that have contributed to the confusion regarding the relationship between the determination that adequate price competition exists and the determination that a price is fair and reasonable.
Until a recent technical amendment, FAR 15.403-1(c)(1)(ii), which addresses ``only one offer,'' included as a standard for adequate price competition the requirement that ``The determination that the proposed price is based on adequate price competition, is reasonable, and is approved at a level above the contracting officer;''. The technical amendment restored the original wording, which had become inadvertently unclear in the process of a major rewrite of FAR part 15, to read as follows:
``The determination that the proposed price is based on adequate price competition and is reasonable has been approved at a level above the contracting officer;''
This makes it unambiguous that it is the price that must be reasonable, not the determination, and that this determination of reasonable price is an essential part of the determination that adequate price competition exists.
However, FAR 15.404-1(b)(2)(i) makes the statement that ``Normally, adequate price competition establishes a fair and reasonable price (see FAR 15.403-1(c)(1)).'' This statement is overly broad. Although ``adequate price competition'' and ``fair and reasonable price'' are inextricably linked, only adequate price competition as described at FAR 15.403-1(c)(1)(i) can be used as the basis to determine that the price is fair and reasonable. FAR 15.403-1(c)(1)(i) involves the receipt of offers from two or more responsible sources, competing independently. That this is what was intended at FAR 15.404-1(b)(2)(i) is clear from the lead-in sentence, which addresses the comparison of proposed prices received in response to the solicitation as a price analysis technique.
The perception that ``based on adequate price competition'' can be used as sufficient basis to determine that a price is fair and reasonable is clearly untenable for the standards in FAR 15.403-1(c)(1)(ii) and (iii), both of which require a determination of price reasonableness as part of the determination that adequate price competition exists. Since there is no adequate price competition under FAR 15.403-1(c)(1)(ii) until a level above the contracting officer has found the price to be ``reasonable,'' the determination that the price is fair and reasonable in the case of only one offer cannot be based on ``adequate price competition,'' as in the case when multiple offers are received, but must be based on another type of cost or price analysis. The cost or price analysis in the case of paragraph (ii) is not subject to the particular restrictions imposed in paragraph (iii).
The respondents, therefore, have a point when they state that the problem with the determination that ``only one offer'' can constitute adequate price competition lies primarily in the misuse of that determination as a basis to assume that the price is fair and reasonable.
Therefore, DoD has revised the final rule to emphasize that, although FAR 15.403-1(c)(1)(ii) may be used to determine that adequate price competition exists for purposes of an exemption from the requirement to obtain certified cost or pricing data, that determination of adequate price competition can only be made in conjunction with the determination that the price is fair and reasonable, based on cost or price analysis, not just relying on ``adequate price competition.'' If the price can be determined to be fair and reasonable based on cost or price analysis and the appropriate determination is approved at one level above the contracting officer that the other criteria for adequate price competition have been met, or another exception to the requirement for certified cost or pricing data applies, then there is no need for any additional cost or pricing data.
Comment: One respondent expressed serious concerns that full and open competition is no longer the model to determine a fair and reasonable price when single offers are received, and that a price achieved through full and open competition is only a starting point for further negotiation.
Response: As already stated, ``full and open competition'' (i.e., adequate price competition) cannot be the basis for determining a fair and reasonable price when only one offer is received, because the determination that adequate price competition exists cannot be made until a separate determination has been made that the price is fair and reasonable.
Comment: One respondent considered it ``inexplicable'' that the proposed rule does not recognize the requirements of FAR 15.403-1(c)(1)(iii) to perform price analysis as contributing to the informed contracting officer decision about adequate price competition and price reasonableness.
Response: Although a prior memorandum of November 24, 2010, from the Director, Defense Procurement and Acquisition Policy (DPAP), included a restriction of reliance on the standard at FAR 14.303-1(c)(1)(iii) for determining adequate price competition, the subsequent DPAP memorandum of April 27, 2011, and the proposed rule only restricted reliance on the exception at FAR 15.403-1(c)(1)(ii). Therefore, FAR 15.403-1(c)(1)(iii) could still be relied upon to determine adequate price competition, if the criteria can be met. Note that this exception only applies if the prices of the prior contracts resulted from adequate price competition.
Comment: One respondent questioned the lack of empirical data to back up the statement in the September 14, 2010, Carter memo that DoD contracting officers were not performing cost or price analysis on single bid offers.
Response: Although DoD does not have extensive data, there is concern based on anecdotal evidence that when there was an expectation of competition but only one offer was received, in too many instances there was not a serious independent cost or price analysis to determine that the price was fair and reasonable. The GAO Report of July 2010 (GAO-10-833, Federal Contracting: Opportunities Exist to Increase Competition and Assess Reasons When Only One Offer Is Received), found that some contracting approaches (about 10 percent of sample reviewed) did not reflect sound procurement or management practices, including some with very limited documentation of the reasonableness of proposed prices.
b. Requirement for More Data
i. Statutory Exemptions From Requirement To Submit Certified Cost or Pricing Data
Comment: Several respondents requested clarification of when data other than certified cost or pricing data applies. Several respondents were further concerned that the proposed rule conflicted with underlying legislation and regulation that prohibit requesting (certified) cost or pricing data in certain circumstances. The respondent requested clarification of the rule to exempt procurements for commercial items or procurement to which another exception applies. The respondent reiterated that agencies are statutorily prohibited from requiring certified cost or pricing data where any exception applies.
Another respondent stated that the rule should state explicitly that unless a waiver is granted or it is a commercial item, the data would always be certified cost or pricing data. This respondent recommended a specific change in the final rule, adding a new paragraph DFARS 215.371(c)(2)(i) to specifically add the requirement to ``Determine if an exception to certified cost or pricing data is necessary and/or applicable.''
Further, another respondent stated that submission of other than certified cost or pricing data should never be a substitute for the submission of certified cost or pricing data. Accordingly, the respondent believed that if only one offer is received, then the submission of certified cost or pricing data should be required in order to conclude that a fair and reasonable price has been established.
Response: The final rule has been revised to make it clearer when additional cost or pricing data is required and when that data must be certified. DFARS 215.371-3(b)(2)(i) states that ``For acquisitions that exceed the cost or pricing data threshold, if no exception at FAR 15.403-1(c) applies, the cost or pricing data shall be certified.'' The rule does not override any of the statutory exemptions from the requirement to require certified cost or pricing data, as set forth at FAR 15.403-1(c).
ii. Impact of Requesting Unnecessary Additional Data
Comment: One respondent stated that although obtaining insight into some single offer procurements may be appropriate, the respondent believes that the goal can be better achieved by better enforcing the existing rules. The respondent cited FAR 15.402(a)(3), which states that ``Contracting officers shall obtain the type and quality of data necessary to establish a fair and reasonable price, but not more data than is necessary. Requesting unnecessary data can lead to increased proposal preparation costs, generally extend acquisition lead time, and consume additional contractor and Government resources.''
Similarly, another respondent objected that the proposed rule effectively shifts the burden for price reasonableness to the offeror, by requiring them to provide either certified cost or pricing data or data other than certified cost or pricing data automatically, in response to several new clauses authorizing the contracting officer to demand such data when a single offer is received. According to the respondent, this rule creates the de facto presumption that any single offer outcome is unreasonable. This respondent recommended that supporting data should be restricted to pricing data and prohibit the contracting officer from requesting cost data or profit figures (per the SARA panel). The respondent further stated that if cost data is necessary, it should not require certification.
Several respondents feared a negative impact because of the proposed rule requirement for submission of cost or pricing data when only one offer is received.
One respondent stated that the uncertainty at the time of offer as to whether cost or pricing data will later be required, imposes an unanticipated burden of gathering such data. The respondent was concerned that this uncertainty may increase prices, drive away competitors, especially nontraditional suppliers, from submitting offers, and thus increase the number of single offers received.
Another respondent stated that the demand for additional data will add to the enormous industry bid and proposal cost burden. The respondent further stated that requiring cost or pricing data is contrary to sound acquisition policy and will negatively impact mission performance accomplishment.
Response: The final rule has been revised to narrow the circumstances in which the contracting officer will request additional cost or pricing data. The rule now clarifies that, in competitive environments when only one offer is received, the contracting officer is only required to obtain enough data to establish fair and reasonable prices and to comply with any statutory requirement for certified cost or pricing data. If the contracting officer determines that the proposed price is fair and reasonable (through cost or price analysis using any data from the same or similar products or services previously procured) and that adequate price competition exists (the determination approved at one level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies, then no further data is required. However, if the contracting officer cannot make the preceding determination, then the contracting officer must request additional cost or pricing data, and that data must be certified, unless another exception to the requirement for certified cost or pricing data applies (e.g., commercial items, or below the certified cost or pricing data threshold).
The provision at DFARS 252.215-7008 has been revised in the final rule so that it no longer automatically requires additional data if only one offer is received. The provision notifies offerors that the contracting officer may request additional cost or pricing data if only one offer was received and if additional cost or pricing data is required in order to determine whether the price is fair and reasonable. In addition, the provision has been revised so that an offeror, by submission of its offer, agrees to provide any data requested by the contracting officer in accordance with FAR 52.215-20.
c. Negotiations
Comment: Several respondents commented on the requirement that the negotiated price should not exceed the offered price. One respondent asked whether a FAR deviation from FAR 15.306(d), Exchanges with offerors after establishment of the competitive range, was being processed for DFARS 215.371(c)(2)(ii), which states in part that ``If the contracting officer decides to enter negotiations, the negotiated price should not exceed the offered price.''
Response: FAR 1.304 provides that agency regulations may be inconsistent with the FAR as provided in FAR subpart 1.4, Deviations from the FAR. FAR 1.404(b) provides that for DoD, class deviations are controlled, processed, and approved in accordance with the DFARS. DPAP is the approval authority for class deviations or changes to the DFARS that constitute a permanent deviation from the FAR. Incorporation of a policy or procedures in the DFARS is sufficient to establish that a policy or procedure different from the FAR is applicable to DoD. DoD only processes a deviation from the FAR as a separate document when there is insufficient time to incorporate the changes in the DFARS or the incorporation in the DFARS is inappropriate for some other reason.
Comment: One respondent stated that both discussions and negotiations could reveal errors that would lead to revised proposals either lower or higher than the offered price. Additionally, the respondent expressed concern that the definition of ``should'' is different to each individual. Another respondent recommended striking the limitation that negotiated price should not exceed offered price from paragraph (c) of proposed DFARS 252.215-70XX.
Response: The term ``should'' is defined at FAR 2.101 (see response to third comment under section II.B.2.b.). If discussions or negotiations reveal errors that would lead to revised proposals, then that could constitute sufficient rationale to diverge from the norm of ``should'' and negotiate a higher price.
Comment: One respondent cited the 20 percent likelihood that there will be only one offer as cause for offerors to back away from making an initial offer, because if there is only one offer, then the offeror will be forced to negotiate further with their offered price as ceiling. The respondent also sees an impact on contracting officers because of the difference between the FAR and the DFARS, causing ``more confusion among DoD contracting officers about the negotiation process.''
Response: The rule has been revised so that negotiations only ensue when the contracting officer cannot determine that the offered price is fair and reasonable (also see response to previous section II.B.3.b.ii.).
Comment: One respondent had some technical comment with regard to entering negotiations under DFARS part 214. The respondent recommended inclusion of several references (at DFARS 214.404-1(1) and (2) and 214.408-1(b)) to FAR 14.404-1(f), which allows sealed bidding to convert to negotiated in lieu of cancellation required by FAR 14.404-1(c).
Response: The DFARS supplementation of FAR 14.404-1 has added a
reference to FAR 15.404-1(f) to clarify that the DFARS procedures at DFARS 215.371 supersede the procedures at FAR 14.404-1(f).4. Exceptions in Proposed Rule
a. Simplified Acquisition Threshold
Comment: Three respondents recommended increasing the proposed threshold for application of the rule from the simplified acquisition threshold to $10 million. One respondent stated that the rule should exempt acquisitions less than $10 million, in order to return the highest level of benefit from the burdens imposed by submission of cost or pricing data and negotiation.
Similarly, another respondent recommended the $10 million threshold in order to focus the requirements on the competitions in which fostering effective competition would have the most beneficial impact to DoD and for which a failure to perform adequate cost or price analysis of single offers could result in the most detriment to DoD.
A third respondent provided the rationale that, especially for procurement of services, for many procurements of less than $10 million associated with re-competes, other contractors determine that based on a cost-benefit analysis, the cost of writing and submitting a proposal exceed the potential benefits associated with the acquisition.
Response: The simplified acquisition threshold is currently $150,000, with higher thresholds for contingency operations or to facilitate the defense against nuclear, biological, chemical, or radiological attack (which are exempt from this rule). Another possible threshold that was considered is the threshold for certified cost or pricing data ($650,000). DoD decided to retain the simplified acquisition threshold as the threshold for application of this rule. It is not to the benefit of DoD to exempt acquisitions up to $10 million from this rule, or even $650,000, especially as the final rule has been revised to eliminate any unnecessary burden. It is important at every dollar value to maximize competition and determine that prices are fair and reasonable. The primary reasons that buys below the simplified acquisition threshold have been exempted from this rule are because--
41 U.S.C. 1901 requires that in order to ``promote efficiency and economy in contracting and to avoid unnecessary burdens,'' the FAR shall provide simplified procedures for acquisitions not greater than the simplified acquisition threshold; and
It is simply not feasible to apply the rule to the huge volume of very low dollar value buys, a large majority of which are conducted electronically.
b. Contingency Contracting
Comment: One respondent viewed the exception for contingency contracting as a serious defect. The respondent referenced the Commission on Wartime Contracting as evidence that DoD's non-competitive procurement practices in contingency operations have resulted in billions of dollars of waste. The respondent, therefore, recommended that either the exception be deleted, or a rigorous set of guidelines be included in the final rule, to limit the instances in which such an exception could be granted.
Response: An exception for actions in support of contingency operations is provided due to the urgent nature of actions and the need for flexibility in theater in order to remain responsive. Application of the exception does not eliminate the need for the contracting officer to seek maximum practicable competition and ensure that the price is fair and reasonable. The intent of the proposed rule is to drive behavior to enhance real competition whenever possible and to obtain a fair and reasonable price. To establish a rigorous set of guidelines to limit instances in which an exception could be granted in a contingency environment could severely limit the flexibility of the contracting officer in these instances. DoD is also reviewing the findings/recommendations of the Commission on Wartime Contracting and placement of additional safeguards and remedies to promote competition in a contingency environment.
5. Waiver
Comment: One respondent criticized the waiver provision for being ``unlimited'' and imposing ``no restrictions or guidance on when or how the head of the contracting activity should exercise this authority. According to this respondent, if there are no reasonable restrictions on granting of waivers, then it is unlikely that DoD's practice will change.
Response: The requirement to resolicit for an additional 30 days may be waived by the head of the contracting activity (HCA). The intent of including this waiver provision is to maintain flexibility and allow the HCA to exercise the authority of the position. Typically, this position is filled by a senior acquisition professional who has demonstrated sound business judgment and acumen. DoD relies on those in charge to exercise good judgment in the execution of their duties. This waiver authority cannot be delegated below one level above the contracting officer. DoD has not seen evidence of abuse of this waiver authority.
Comment: One respondent recommended that the rule should allow requesting a waiver of the requirement to resolicit for an additional 30 days if the contracting officer has determined fair and reasonable prices through price or cost analysis or negotiations with the offeror, and the waiver has been approved by the PARC (Principal Assistant Responsible for Contracting).
Response: The purpose of the 30-day resolicitation requirement is to promote effective competition. Determination that the offered price is fair and reasonable may provide supporting rationale for granting a waiver, but does not by itself constitute sufficient grounds to grant a waiver. More important reasons for granting a waiver would be urgency of the requirement or market research that indicates that an additional 30 days is unlikely to result in additional offers.
The final rule continues to allow the waiver authority to be delegated to one level above the contracting officer (which would include the PARC). An approval one level above the contracting officer ensures a layer of review and provides a mechanism for checks and balances. Waiver of the 30-day resolicitation period does not relieve the contracting officer of the need to determine the price fair and reasonable.
6. Applicability to Parts Other Than DFARS Parts 214 and 215
a. Part 208
Comment: Several respondents recommended that the proposed rule should not apply to DFARS subpart 208.4, Federal Supply Schedules.i. Timing and Complexity
Comment: One respondent stated that the purpose for the GSA Federal Supply Schedule is to provide the Government an expedited means to procure commercial supplies and services at the substantially lower costs associated with volume buying. Therefore, expanding the DoD memos to DFARS subpart 208.4 (as well as DFARS parts 212, 213, and 216), ``eviscerates their intention'' and will overload the acquisition process.
Another respondent provided an example of an agency that frequently posts RFQs using the GSA eBuy tool for fewer than 30 days. The RFQs are available to all vendors on the relevant GSA schedule. Although multiple responses are generally received, occasionally there is only one quote received. According to this respondent, lengthening the RFQ response time to 30 days would impede the goal of simplifying and streamlining the procurement process.
Response: DoD recognizes that the Federal Supply Schedule program directed and managed by GSA provides a simplified and flexible process for obtaining commercial supplies and services. The schedule program, because it does not require contracting officers to seek competition outside of the schedule holders or to synopsize the requirement, can be very efficient. DoD also believes that effective competition promotes greater efficiency and productivity in defense spending, and that DoD needs to do more to promote competition when only one offer is received in response to a competitive solicitation. The final rule requires, when only one offer is received in response to a competitive solicitation, that the contracting officer promote competition by trying to revise the requirements document and by permitting more time for receipt of offers. In addition, the final rule does not eliminate the efficiencies or flexibilities inherent in FAR part 8 transactions.
RFQs using the GSA eBuy tool are frequently posted for less than 30 days and generally receive more than one response. The final rule still permits requests for quotation to be solicited for fewer than 30 days, and only requires a resolicitation for 30 days (or a waiver) in those cases when only one offer was received. Market research can provide contracting officers the insight required to determine the solicitation response time required to ensure effective competition without needlessly lengthening the RFQ response time to 30 days. In many cases, market research will indicate that multiple offers will be received in response to an RFQ open for under 30 days. In other cases, market research will indicate that contracting officers need to keep RFQs open for 30 days to encourage effective competition. Finally, market research will indicate that additional time will likely not result in additional offers, and provide contracting officers with the rationale to support a waiver of the resolicitation requirement.ii. Authority of GSA
Comment: One respondent stated that GSA is vested with the exclusive statutory authority for the pricing policies and procedures governing contracts and orders under the Federal Supply Schedule (40 U.S.C. chapter 5 and 41 U.S.C. 152(3)). Any modifications must be approved by GSA and incorporated into the General Services Acquisition Regulation (GSAR).
Response: DoD understands GSA's exclusive statutory authority for directing and managing the Federal Supply Schedule (FSS) program, and is not modifying the FSS program with this final rule. Instead, the final rule merely supplements GSA's existing guidance on the FSS program to ensure FSS program use by DoD contracting officers is consistent with DoD's policies for promoting competition. Specifically, the final rule augments GSA's policies and procedures for the FSS program by providing DoD contracting officers specific instructions when only one offer is received in response to a competitive FSS solicitation. DoD has periodically issued additional guidance and instructions to govern use of the FSS within DoD.iii. Sufficiency of FAR and GSAR Processes
Comment: According to several respondents, the proposed regulations are unnecessarily duplicative, because the FAR and the GSAR already provide a framework for the effective and efficient procurement of goods and services at fair and reasonable prices. The respondents noted that under the FSS, GSA has already determined that the prices for products and the rates for services are fair and reasonable (FAR 8.404(d)). According to the respondents, ordering agencies are not required to make a separate determination of fair and reasonable prices of supplies and fixed price services, except for a price evaluation as required by FAR 8.405-2(d). In such cases, agencies are only responsible for considering the level of effort and labor mix and making a determination whether the total price is fair and reasonable.
Response: Existing regulations already anticipate that contracting officers can achieve prices below those determined fair and reasonable by GSA by pursuing additional competition and/or price negotiations. Even though GSA has already negotiated fair and reasonable pricing under the FSS program, the FAR permits contracting officers to seek additional discounts before placing an order. Agencies are required to seek price reductions from the fair and reasonable contract prices for orders exceeding the simplified acquisition threshold (see FAR 8.405-4). As a practical matter, contracting officers routinely achieve such impressive discounts that award at published FSS prices is discouraged. Similarly, existing DFARS regulations provide specific guidance to DoD contracting officers that govern competitions under FSS.
The final rule provides specific guidance to DoD contracting officers when only one offer is received. The final rule augments existing DoD guidance on FSS competitions. The final rule also provides additional guidance to DoD contracting officers that govern the establishment of price in one offer competitions. The final rule is consistent with the existing requirements for competitions under the FSS program and with the standard for determining fair and reasonable prices.
iv. Technical
Comment: One respondent stated that the threshold of ``exceeding $150,000'' at DFARS 208.405-70(c)(1), which provides criteria for orders placed on a competitive basis, appears to create a conflict with DFARS 215.371(e)(ii), which creates no threshold for the ``attack items,'' i.e., items to facilitate against or recovery from nuclear, biological, chemical, or radiological attack.
Response: The final rule supplements, but does not conflict with, the competition requirements in DFARS 208.405-70(c)(1). The final rule provides additional policies and procedures when one offer is received in response to a competitive solicitation. The final rule, at DFARS 215.371-4, exempts certain acquisitions, including ``attack items'' from the new policies and procedures for one offer competitions.
Comment: One respondent noted that FAR 8.404 specifically states that FAR part 15 is not applicable to FSS orders. Therefore, this statement would have to be addressed in the DFARS, in order to make DFARS part 215 applicable.
Response: As requested by the respondent, the final rule adds specific language at DFARS 208.404(a) to make DFARS 215.371 applicable.
Comment: One respondent recommended creating a clause for orders (DFARS 208.405-70(d) and 215.506(S-70)).
Response: The final rule includes provisions at DFARS 252.215-7007, Notice of Intent to Resolicit, and DFARS 252.215-7008, Only One Offer, that apply to all competitive acquisitions, including orders, subject to the final rule. The final rule does not include an additional clause for orders.
b. Part 212
Several respondents recommended that the proposed rule should not apply to commercial items (DFARS part 212), for the following reasons:
i. Timeframe for Response
Comment: Several respondents noted that FAR 12.205(c) specifically provides for fewer than 30 days response time for receipt of offers for commercial items. One respondent stated that the proposed rule is inconsistent with FAR 12.205(c). Another respondent noted that acquisition requirements and processes for the procurement of commercial items were supposed to more closely resemble those customarily used in the commercial marketplace, which the respondent considers to be the reason for allowing shorter response times for receipt of offers for commercial items. This respondent noted that the DFARS proposed rule does not foster the policy behind commercial item acquisitions. A third respondent noted that there is an expectation that an agency can acquire IT in 30 days or fewer, in order to respond to a cyber threat. However, according to the respondent, contracting officers will never be able to respond in 30 days or fewer, because by default, an agency will post the request for quote for the required 30 days, just to avoid the risk of having to do it over again.
Response: Current regulations permit response times under 30 days for commercial items. Shorter response times may more closely resemble commercial practice and may speed the acquisition of critical IT and other items. The final rule still permits response times under 30 days, and only requires a resolicitation for 30 days (or a waiver) in those cases when only one offer was received. Market research can provide contracting officers the insight required to determine the solicitation response time required to ensure effective competition without needlessly lengthening every solicitation's response time to 30 days. In many cases, market research will indicate that multiple offers will be received in response to an RFP/RFQ open for fewer than 30 days. In other cases, market research will indicate that contracting officers need to give potential offerors at least 30 days to encourage effective competition. Similarly, market research will indicate those cases where additional time will likely not result in additional offers, and will provide contracting officers with the rationale to support a waiver of the resolicitation requirement. The final rule also recognizes that certain requirements are too urgent to permit a 30-day solicitation response period, and includes an exception for acquisitions in support of contingency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack. Finally, the final rule also permits waivers of the 30-day resolicitation requirement, when necessary and justified.
ii. Other Ways To Determine Fair and Reasonable Prices
Comment: One respondent suggested that excluding commercial contracts would be one means to narrow the scope of the proposed rule to those contracts that might return the highest level of benefit. The respondent noted that in the case of commercial contracts, competitive pricing can often be verified without resort to additional data from the contractor, which is one reason that the law prohibits requesting certified cost or pricing data for commercial contracts.
Response: Competitive pricing can often be verified without resort to additional data from the contractor. The final rule has been revised to provide that, when a single offer is received in response to a competitive solicitation, the contracting officer should try to determine through cost or price analysis that the offered price is fair and reasonable and whether an exception to the requirement for certified cost or pricing data applies, before requesting any additional data from the contractor. The final rule refers contracting officers to the existing exceptions to the requirement to submit certified cost or pricing data, including the commercial item exception.
iii. Access to the DoD Market
Comment: One respondent viewed the application of the proposed rule to acquisition of commercial items as an added barrier to entry into the DoD market.
Response: Typically, commercial vendors cite the requirement for certified cost or pricing data as a key deterrent to doing business with the DoD. The final rule does not change the commercial item exemption to the requirement for certified cost or pricing data. In addition, by ensuring adequate proposal preparation time is provided to potential offerors, the final rule encourages commercial item vendors to participate in DoD's competitions. Finally, the final rule implements key policies necessary to improve the efficiency and productivity of DoD's procurements. While DoD does not believe that the final rule creates barriers to entry, commercial vendors will need to make business decisions about their participation in the DoD marketplace.
c. Subpart 13.5
The FAR subpart 13.5 test program is no longer in effect. The final rule deletes all references to the FAR subpart 13.5 test program.
d. Part 216
Various respondents did not agree with application of the proposed rule to DFARS part 216.
i. 30-Day Resolicitation
Comment: One respondent stated that the rule should clarify whether the 30-day requirement also applies to delivery/task orders solicited under a multiple award/indefinite-delivery/indefinite-quantity type contract, noting that competition is limited to the primes under these contracts. Another respondent stated that the proposed rule should not require resolicitation for an additional 30 days if the other prime contractors indicate that they will not provide an offer if additional days are provided.
Another respondent stated that the rule should not apply to multiple-award contracts when only two or three contractors were awarded the base contract, and one or more of the base contract awardees is excluded from submitting a proposal due to an organizational conflict of interest. In such case, only receiving one proposal will not be the result of inadequate competition and 30-day resolicitation would interfere with deliveries without resulting in increased competition.
Response: The final rule applies to the prime contractor awardees in a multiple-award contract scenario. If the prime contractors state that they are not going to provide an offer if additional days are provided, or if there is an organizational conflict of interest for one or more of the prime contractors, then the contracting officer may pursue a waiver to the 30-day resolicitation requirement in accordance with DFARS 215.371-5 of the final rule.
ii. Adequate Price Competition
Comment: One respondent stated that multiple-award contracts are already awarded based on adequate price competition.
Response: Consistent with the fair opportunity rules at FAR 16.505(b), the final rule is intended to promote real competition when only one offer is received to ensure the integrity of the competitive contracting process is maintained for each task or delivery order, even when the multiple-award contracts were awarded based on adequate price competition.
iii. Cost or Pricing Data
Comment: One respondent stated that cost or pricing data was submitted and evaluated at time of award and does not need to be submitted if only one offer is received.
Response: Even if cost or pricing data was submitted at the time of award, the contracting officer must consider price or cost in the selection decision as one of the factors for each task or delivery order issued. If only one offer is received for a task or delivery order, the contracting officer may not rely on adequate price competition to determine that the price of the task or delivery order is fair and reasonable. The contracting officer may make the determination that the offered price is fair and reasonable and is based on adequate price competition (approved one level above the contracting officer) or that another exception to the requirement for certified cost or pricing data applies. However, if the contracting officer cannot make this determination and must request additional cost or pricing data, that cost or pricing data must be certified unless an exception applies.
e. Part 219
Comment: One respondent recommended that the proposed rule should not apply to small business set-asides. Another respondent requested clarification as to whether the proposed rule was intended to be applicable to small business programs. Although the rule did not specifically make any changes to FAR part 19, there may be impact through references in FAR 19.502-4 (Methods of conducting set-asides) to conducting the set-aside using the procedures of FAR parts 13, 14, or 15; and FAR 19.806 (Pricing the 8(a) contract) requires the contracting officer to price the 8(a) contract in accordance with FAR subpart 15.4. More specifically, the respondent pointed to FAR 19.502-2(a), which provides that ``If the contracting officer received only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should make an award to that firm.'' There is comparable language in FAR 19.1305(c) for HUBZone set-asides, 19.1405(c) for service-disabled veteran-owned small business set-aside procedures, 19.1505(d) for women-owned small business program set-asides.
Response: An exception has been added at DFARS 215.371-4(b) to the 30-day resolicitation requirement at DFARS 215.371-2. The final rule does not preclude any requirement that was set-aside under the authority of FAR 19.1305, 19.1405 or 19.1505 from being awarded, if only one acceptable offer was received.
The intent still is to ensure that prices and/or costs obtained by the offeror are fair, reasonable, and in the best interest of the Government, even by small businesses. Based on market research, the contracting officer is reasonably expected not to set-aside a requirement for competition, unless there is a ``reasonable expectation that offers will be received from two or more small business concerns and that award will be made at a fair market price.'' If only one acceptable offer is received from a competitive set-aside, then the procedures at DFARS 215.371-3 for determination of a fair and reasonable price apply equally to small business set-asides.
f. Part 235
Comment: One respondent recommended that the final rule should explicitly exclude competitions for basic and applied research conducted under FAR 35.016. The respondent commented that, although the proposed rule does not address research competitions under FAR 35.016 utilizing Broad Agency Announcements as the solicitation method, the amplifying memorandum of April 27, 2011, stated that the policy applies to all competitive procurements of supplies and services that exceed the simplified acquisition threshold. The respondent provided several reasons why the entire issue of ``one bid'' is problematic for broad agency announcements, because offers under broad agency announcement sometimes trickle in over an extended open period, and often individual offers can be entertained at any time.
Response: Although the final rule does not specifically address FAR part 35, acquisitions under FAR part 35 are generally subject to the procedures of FAR part 15 and DFARS part 215. The procedures of DFARS 215.371 should not apply to broad agency announcements under FAR 35.006. The requirement for resolicitation if the original solicitation is for less than 30 days is not likely to affect a broad agency announcement, because they are usually issued for an extended period of time. However, because contracts awarded under broad agency announcements, although competitively awarded, are not awarded on the basis of price competition, the approach at DFARS 215.371 would not be appropriate for a broad agency announcement. Responses to a broad agency announcement are expected to propose varying technical/scientific approaches. Proposals need not be evaluated against each other since they are not submitted in accordance with a common work statement. Therefore, to make it clear that DFARS 215.371 does not apply to awards under broad agency announcement, an exception has been added at DFARS 215.371-4(a)(1)(iii). DFARS 215.371-4(a)(2) states that the applicability of an exception does not eliminate the need for the contracting officer to ensure that the price is fair and reasonable.
7. Regulatory Flexibility
Two respondents questioned the Initial Regulatory Flexibility Analysis (IRFA) and made recommendations for reducing the impact on small business.
Comment: These respondents questioned the assertion that the rule will not affect small business entities. One respondent stated that 5,148 small business awards over $150,000 is not an insubstantial figure. Another respondent stated that there could be adverse effects, especially with respect to commercial and low-dollar contracts sought by small businesses. According to this respondent, small businesses may be disproportionately impacted, because they may lack the resources to provide cost or pricing data. Another respondent disagreed with the conclusion of the IRFA that the burden for submission of cost or pricing data is already covered in the FAR. According to this respondent, the IRFA did not acknowledge that this rule will increase the requirement for submission of cost or pricing data by small businesses, because submission of cost or pricing data is not currently a requirement for full and open competition.
Response: The final rule has, however, reduced the impact on all businesses, including small businesses. As rewritten, the final rule is not inconsistent with the current FAR requirements to determine that the price is fair and reasonable when only one offer is received. It uses the FAR clause 52.215-20, but includes a mechanism whereby the FAR clause only becomes effective if only one offer is received, and the contracting officer cannot determine that the offered price is fair and reasonable without requiring additional data. This is part of the current FAR requirement to determine that adequate price competition exists if only one offer is received.
With regard to impact on commercial and low-dollar value contracts sought by small businesses, the rule does not apply at all to contracts with dollar values below the simplified acquisition threshold. For acquisitions above the simplified acquisition threshold, the contracting officer will only request the data necessary to determine a fair and reasonable price. No certified cost or pricing data is required for commercial items. A small business that is offering items to the Government in quantities that exceed the simplified acquisition threshold and are not commercial items should have an accounting system adequate to provide cost or pricing data upon request.
Comment: Another comment on the IRFA was that it does not explain the relationship between the submission of cost or pricing data and increased competition.
Response: As clarified in the revised policy of the final rule, there is no relationship between submission of cost or pricing data and increased competition. The submission of cost or pricing data is to determine whether the offered price is fair and reasonable, when the efforts to increase competition nevertheless resulted in only one offer and the contracting officer could not make that determination without additional data.
Comment: One respondent further recommended exclusion of--
Set-asides for small business; and
Acquisitions using full and open competition procedures that result in single offers from small businesses.
Response: An exception to the 30-day resolicitation requirement has been added at DFARS 215.371-4(b) for small business set-asides, because the FAR specifically provides at FAR 19.5, 19.305(c), 19.1405(c), and 19.1505(d) that if only one acceptable offer is received under these set-aside programs, the contracting officer should award to that concern.
The final rule does not include any exception for when the single offer comes from a small business, because it is important to increase competition and allow all businesses sufficient time to respond to a solicitation, which could be of benefit to other small businesses.
In all cases, it is still essential to determine that the price is fair and reasonable.
8. Executive Order Requirements for Cost/Benefit Analysis
Comment: Two respondents commented on the need for cost/benefit analysis as required by Executive Orders 12866 and 13563. One respondent recommended that DoD should consider performing a cost/benefit analysis before finalizing the proposed rule. According to the respondent, the proposed rule will affect a significant number of procurements and may create burdens on procurement professionals and contractors that are not commensuratewith the benefits anticipated. Another respondent noted that there is a lack of empirical support for the proposed rule. According to the respondent, without further cost/benefit data to support the rulemaking, it fails to demonstrate that this rule is needed to cure the underlying problem of single offer competition.
Response: The purpose of this rule is not just to save money but to ensure the integrity of the process. More competition benefits all parties, including small businesses. Although it is possible to demonstrate that increased competition strengthens the industrial base and has a beneficial impact on pricing, the benefits are not readily quantifiable. DoD is tracking improvement in the percentage of effective competition (more than one offer). DoD has always had a fiduciary responsibility to determine that prices are fair and reasonable. The most basic pricing policy at FAR 15.402 is that the contracting officer shall purchase supplies and services from responsible sources at fair and reasonable prices. Unless certified cost or pricing data is required by law (see FAR 15.403-4), the contracting officer is required to obtain data other than certified cost or pricing data as necessary to establish a fair and reasonable price. This rule provides a mechanism to accomplish that goal when a competitive solicitation does not result in more than one offer. As revised, the final rule does not impose unnecessary burdens. See also the last response in section II.B.3.a. and the responses in section II.B.3.b.ii.
9. Additional Recommendations
a. Delay Implementation
Comments: One respondent recommended that DoD delay implementation of the rule until the Comptroller General studies one-offer contracts and issues a report (section 847 of the proposed Senate version of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 (S. 1253) requires such a review).
Response: The NDAA for FY 2012, as enacted, did not contain such a requirement for a study of one-offer contracts. DoD needs to take action to improve competition and ensure fair and reasonable prices. DoD will remain ready to reassess any future recommendations on how progress towards these goals can be improved.
b. Sunset Date
Comment: One respondent recommended that the rule should sunset automatically 12 months after the effective date, or, at the latest, at any time after that if the DoD Competition Report data reveals that single offer competitions are 15 percent or less of the total number of acquisition awards.
Response: If the policies and procedures of this rule are beneficial, then there is no need to sunset them after a specific amount of time or if certain effective competition goals are reached. The policies of the final rule are sound policies to maintain, regardless of the percentage of effective competition achieved. Improvement in the rate of effective competition would imply that the policies are working. However, if effective competition is still only 85 percent, then the remaining 15 percent needs to be addressed, continuing to promote more effective competition and ensuring a fair and reasonable price.
c. Line Item for Cost or Pricing Data
Comment: One respondent recommended authorization or requirement that contracting officers include optional contract line items to pay directly for the provision of cost or pricing data not required at the time of submission.
Response: This cost or pricing data is requested prior to contract award and is still considered part of the bid or proposal costs, which are costs incurred in preparing, submitting, and supporting bids and proposals. Bid or proposal costs are only allowable as indirect expenses on contracts, to the extent that those costs are allocable and reasonable (FAR 31.205-18(c)).
d. Use of E-Proposals
Comment: One respondent requested authorization of broader use of e-proposals in the solicitation and contract formation processes in order to offset some of the timing burden caused by a 30-day solicitation period and/or by late notice of the solicitation's requirements to prospective offerors.
Response: E-solicitations and e-proposals are already broadly used. The solicitation can authorize electronic commerce methods for submission of offers. Some offerors prefer e-proposals, but others do not want e-proposals to be mandated. The goal of this rule is to provide sufficient time for interested offerors to respond.
e. Market Research and Price Analysis Capability
Comment: One respondent recommended training and rewarding of market research capability and price analysis capability within each DoD component or the centralization of market research capability.
Response: This recommendation is outside the scope of this rule.
f. Support Enhanced Communication
Comment: One respondent recommended continued support of enhanced communication with industry about requirements and solutions throughout the acquisition cycle.
Response: DoD wholly supports this recommendation.
10. Technical
Comment: One respondent suggested that the coverage should be at DFARS subpart 215.4 rather than DFARS 215.371.
Response: The reason for putting the coverage in DFARS 215.371 rather than in DFARS subpart 215.4 is because the rule covers more than just contract pricing. It also involves seeking to increase competition through review of the requirements and ensuring adequate time for submission of offers.
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
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 rule implements the initiative on promoting real competition that was presented by the Under Secretary of Defense for Acquisition, Technology, & Logistics in a memorandum dated November 3, 2010. The objective of the rule is to promote competition and ensure fair and reasonable prices, by implementing DoD policy with regard to acquisitions when only one offer is received to ensure that--
Adequate time is allowed for receipt of offers;
The requirements do not present unnecessary barriers to competition; and
Cost or pricing data is obtained and negotiations are held, as necessary, to obtain a fair and reasonable price, when only one offer is received in response to a competitive solicitation and the contracting officer cannot determine that the offered price is fair and reasonable.
The legal basis is 41 U.S.C. 1303 and 48 CFR chapter 1.
Two respondents questioned the Initial Regulatory Flexibility Analysis and made recommendations for reducing the impact on small business. See section II.B.7 for analysis of public comments on regulatory flexibility.
No comments were filed by the Chief Counsel for Advocacy of the Small Business Administration.
The proposed rule provided the following data: that it would affect all small entities that respond to a Federal solicitation for proposals, valued at more than $150,000, and no other offer is received.
Table--DoD Competitive Awards Valued Above $150,000
----------------------------------------------------------------------------------------------------------------
All Only one offer 1 Offer/SB
----------------------------------------------------------------------------------------------------------------
New Contracts or P.O............................................ 54,240 14,747 3,542
New Orders under FSS............................................ 4,246 1,654 818
New Orders, Non-Part 8.......................................... 12,883 2,935 788
----------------------------------------------------------------------------------------------------------------
The impact of this rule has been reduced significantly by eliminating the requirement for additional data and subsequent negotiation if the contracting officer can determine that the offered price is fair and reasonable and that adequate price competition exists (approved at one level above the contracting officer).
The rule imposes no reporting, recordkeeping, or other information collection requirements. The submission of certified cost or pricing data or other than certified cost or pricing data is covered in FAR subpart 15.4 and associated clauses in FAR 52.215, OMB clearances 9000-013.
There are no known significant alternatives to the rule that would adequately implement the DoD policy. DoD considered higher thresholds for applicability of the rule (cost or pricing data threshold or $10 million), but determined that higher thresholds would be detrimental to the effectiveness of the rule. There is no significant economic impact on small entities. The impact of this rule on small business is expected to be predominantly positive, by allowing more opportunity for competition.
V. Paperwork Reduction Act
The rule does not impose any additional 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). The submission of certified cost or pricing data or data other than certified cost or pricing data required to assess whether a price is fair and reasonable is covered in FAR subpart 15.4 and associated clauses in FAR 52.215, OMB clearance number 9000-013, in the amount of 10,101,684 hours.
List of Subjects in 48 CFR Parts 205, 208, 212, 214, 215, 216, 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 205, 208, 212, 214, 215, 216, and 252 are
amended as follows:
PART 205--PUBLICIZING CONTRACT ACTIONS
1. The authority citation for 48 CFR part 205 is revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
2. Amend section 205.203 by adding paragraph (S-70) to read as follows:
205.203 Publicizing and response time.
* * * * *
(S-70) When using competitive procedures, if a solicitation allowed fewer than 30 days for receipt of offers and resulted in only one offer, the contracting officer shall resolicit, allowing an additional period of at least 30 days for receipt of offers, except as provided in 215.371-4 and 215.371-5.
PART 208--REQUIRED SOURCES OF SUPPLIES AND SERVICES
3. The authority citation for 48 CFR part 208 is revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
4. Revise section 208.404 to read as follows:
208.404 Use of Federal Supply Schedules.
(a)(i) In accordance with 208.405-70(c)(2), if only one offer is received in response to an order exceeding $150,000 that is placed on a competitive basis, the procedures at 215.371 apply.
(ii) Departments and agencies shall comply with the review, approval, and reporting requirements established in accordance with subpart 217.78 when placing orders for supplies or services in amounts exceeding the simplified acquisition threshold.
(iii) When a schedule lists both foreign and domestic items that will meet the needs of the requiring activity, the ordering office must apply the procedures of part 225 and FAR part 25, Foreign Acquisition. When purchase of an item of foreign origin is specifically required, the requiring activity must furnish the ordering office sufficient information to permit the determinations required by part 225 and FAR part 25 to be made.
5. Amend section 208.405-70 by revising paragraph (c), redesignating paragraph (d) as paragraph (e), and adding new paragraph (d) to read as follows:
208.405-70 Additional ordering procedures.
* * * * *
(c)(1) An order exceeding $150,000 is placed on a competitive basis only if the contracting officer provides a fair notice of the intent to make the purchase, including a description of the supplies to be delivered or the services to be performed and the basis upon which the contracting officer will make the selection, to--
(i) As many schedule contractors as practicable, consistent with market research appropriate to the circumstances, to reasonably ensure that offers will be received from at least three contractors that can fulfill the requirements, and the contracting officer--
(A)(1) Receives offers from at least three contractors that can fulfill the requirements; or
(2) Determines in writing that no additional contractors that can fulfill the requirements could be identified despite reasonable efforts to do so (documentation should clearly explain efforts made to obtain offers from at least three contractors); and
(B) Ensures all offers received are fairly considered; or
(ii) All contractors offering the required supplies or services under the applicable multiple award schedule, and affords all contractors responding to the notice a fair opportunity to submit an offer and have that offer fairly considered.
(2) If only one offer is received, follow the procedures at 215.371.
(d) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
* * * * *
PART 212--ACQUISITION OF COMMERCIAL ITEMS
6. The authority citation for 48 CFR part 212 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
7. Add section 212.205 to read as follows:
212.205 Offers.
(c) When using competitive procedures, if only one offer is received, the contracting officer shall follow the procedures at 215.371.
8. Amend section 212.301 by redesignating paragraphs (f)(iv)(F) through (N) as paragraphs (f)(iv)(G) through (O) and adding new paragraph (f)(iv)(F) to read as follows:
212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.
(f) * * *
(iv) * * *
(F) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
* * * * *
PART 214--SEALED BIDDING
9. The authority citation for 48 CFR part 214 is revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
10. Add section 214.201-6 to read as follows:
214.201-6 Solicitation provisions.
(2) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
11. Add section 214.209 to read as follows:
214.209 Cancellation of invitations before opening.
If an invitation for bids allowed fewer than 30 days for receipt of offers, and resulted in only one offer, the contracting officer shall cancel and resolicit, allowing an additional period of at least 30 days for receipt of offers, as provided in 215.371.
12. Revise section 214.404-1 to read as follows:
214.404-1 Cancellation of invitations after opening.
(1) The contracting officer shall make the written determinations required by FAR 14.404-1(c) and (e)(1).
(2) If only one offer is received, follow the procedures at 215.371 in lieu of the procedures at FAR 14.404-1(f).
13. Add sections 214.408 and 214.408-1 to subpart 214.4 to read as follows:
214.408 Award.
214.408-1 General.
(b) For acquisitions that exceed the simplified acquisition threshold, if only one offer is received, follow the procedures at 215.371.
PART 215--CONTRACTING BY NEGOTIATION
14. The authority citation for 48 CFR parts 215, 216, and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
15. Add sections 215.371 through 215.371-5 to subpart 215.3 to read as follows:
Subpart 215.3--Source Selection
Sec.
* * * * *
215.371 Only one offer.
215.371-1 Policy.
215.371-2 Promote competition.
215.371-3 Fair and reasonable price.
215.371-4 Exceptions.
215.371-5 Waiver.
215.371 Only one offer.
215.371-1 Policy.
It is DoD policy, if only one offer is received in response to a competitive solicitation--
(a) To take the required actions to promote competition (see 215.371-2); and
(b) To ensure that the price is fair and reasonable (see 215.371-3) and to comply with the statutory requirement for certified cost or pricing data (see FAR 15.403-4).
215.371-2 Promote competition.
Except as provided in sections 215.371-4 and 215.371-5, if only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer shall--
(a) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502(b) and 11.002); and
(b) Resolicit, allowing an additional period of at least 30 days for receipt of proposals.
215.371-3 Fair and reasonable price.
(a) If there was ``reasonable expectation [hellip]that two or more offerors, competing independently, would submit priced offers'' but only one offer is received, this circumstance does not constitute adequate price competition unless an official at one level above the contracting officer approves the determination that the price is reasonable (see FAR 15.403-1(c)(1)(ii)).
(b) Except as provided in section 215.371-4(a), if only one offer is received when competitive procedures were used and the solicitation allowed at least 30 days for receipt of proposals (unless the 30-day requirement is not applicable in accordance with 215.371-4(b) or has been waived in accordance with section 215.371-5), the contracting officer shall--
(1) Determine through cost or price analysis that the offered price is fair and reasonable and that adequate price competition exists (with approval of the determination at one level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies (see FAR 15.403-1(c) and 15.403-4). In these circumstances, no further cost or pricing data is required; or
(2)(i) Obtain from the offeror cost or pricing data necessary to determine a fair and reasonable price and comply with the requirement for certified cost or pricing data at FAR 15.403-4, in accordance with FAR provision 52.215-20. For acquisitions that exceed the cost or pricing data threshold, if no exception at FAR 15.403-1(c) applies, the cost or pricing data shall be certified; and
(ii) Enter into negotiations with the offeror as necessary to establish a fair and reasonable price. The negotiated price should not exceed the offered price.
215.371-4 Exceptions.
(a)(1) The requirements at sections 215.371-2 and 215.371-3 do not apply to acquisitions--
(i) At or below the simplified acquisition threshold;
(ii) In support of contingency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack; or
(iii) Of basic or applied research or development, as specified in FAR 35.016(a), that use a broad agency announcement.
(2) The applicability of an exception in paragraph (a)(1) of this section does not eliminate the need for the contracting officer to seek maximum practicable competition and to ensure that the price is fair and reasonable.
(b)(1) The requirements at section 215.371-2 do not apply to small business set-asides under FAR subpart 19.5 or set-asides under the HUBZone Program (see FAR 19.1305(c)), the Service-Disabled Veteran-Owned Small Business Procurement Program (see FAR 19.1405(c)), or the Woman-Owned Small Business Program (see FAR 19.1505(d)).
(2) The requirements at section 215.371-3 do apply to such set-asides.
215.371-5 Waiver.
(a) The head of the contracting activity is authorized to waive the requirement at 215.371-2 to resolicit for an additional period of at least 30 days.
(b) This waiver authority cannot be delegated below one level above the contracting officer.
16. The 215.403 section heading is revised to read as follows:
215.403 Obtaining certified cost or pricing data.
17. Section 215.403-1 is amended by revising paragraph (c)(1) to read as follows:
* * * * *
(c) Standards for exceptions from certified cost or pricing data requirements--(1) Adequate price competition.
(A) For acquisitions under dual or multiple source programs--
(1) The determination of adequate price competition must be made on a case-by-case basis. Even when adequate price competition exists, in certain cases it may be appropriate to obtain additional information to assist in price analysis.
(2) Adequate price competition normally exists when--
(i) Prices are solicited across a full range of step quantities, normally including a 0-100 percent split, from at least two offerors that are individually capable of producing the full quantity; and
(ii) The reasonableness of all prices awarded is clearly established on the basis of price analysis (see FAR 15.404-1(b)).
(B) If only one offer is received in response to a competitive solicitation, see 215.371-3.
* * * * *
18. Amend section 215.408 by adding paragraphs (3) and (4) to read as follows:
215.408 Solicitation provisions and contract clauses.
* * * * *
(3) Use the provision at 252.215-7007, Notice of Intent to Resolicit, in competitive solicitations that will be solicited for fewer than 30 days, unless an exception at 215.371-4 applies or the requirement is waived in accordance with 215.371-5.
(4)(i) Use the provision at 252.215-7008, Only One Offer, in competitive solicitations, unless an exception at 215.371-4(a)(1) applies.
(ii) In solicitations that include 252.215-7008, Only One Offer, also include the provision at FAR 52.215-20, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, with any appropriate alternate as prescribed at FAR 15.408-1, but that provision will only take effect as specified in 252.215-7008.
PART 216--TYPES OF CONTRACTS
19. Amend section 216.505-70 by revising paragraph (d) to read as follows:
216.505-70 Orders under multiple award contracts.
* * * * *
(d) When using the procedures in this subsection--
(1) The contracting officer should keep contractor submission requirements to a minimum;
(2) The contracting officer may use streamlined procedures, including oral presentations;
(3) If only one offer is received, the contracting officer shall follow the procedures at 215.371.
(4) The competition requirements in FAR part 6 and the policies in FAR subpart 15.3 do not apply to the ordering process, but the contracting officer shall consider price or cost under each order as one of the factors in the selection decision; and
(5) The contracting officer should consider past performance on earlier orders under the contract, including quality, timeliness, and cost control.
20. Amend section 216.506 by adding paragraph (S-70) to read as follows:
216.506 Solicitation provisions and contract clauses.
* * * * *
(S-70) Use the provisions at 252.215-7007, Notice of Intent to Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3) and (4), respectively.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
21. Add sections 252.215-7007 and 252.215-7008 to read as follows:
252.215-7007 Notice of Intent to Resolicit.
As prescribed at 215.408(3), use the following provision:
NOTICE OF INTENT TO RESOLICIT (JUN 2012)
This solicitation provides offerors fewer than 30 days to submit proposals. In the event that only one offer is received in response to this solicitation, the Contracting Officer may cancel the solicitation and resolicit for an additional period of at least 30 days in accordance with 215.371-2.
(End of provision)
252.215-7008 Only One Offer.
As prescribed at 215.408(4), use the following provision:
ONLY ONE OFFER (JUN 2012)
(a) The provision at FAR 52.215-20, Requirements for Certified Cost or Pricing Data and Data other Than Certified Cost or Pricing Data, with any alternate included in this solicitation, does not take effect unless the Contracting Officer notifies the offeror that--
(1) Only one offer was received; and
(2) Additional cost or pricing data is required in order to determine whether the price is fair and reasonable or to comply with the statutory requirement for certified cost or pricing data (10 U.S.C. 2306a and FAR 15.403-3).
(b) Upon such notification, the offeror agrees, by submission of its offer, to provide any data requested by the Contracting Officer in accordance with FAR 52.215-20.
(c) If negotiations are conducted, the negotiated price should not exceed the offered price.
(End of provision)
[FR Doc. 2012-15569 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P
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[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15568]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 242, 247, and 252
RIN 0750-AH53
Defense Federal Acquisition Regulation Supplement: Shipping Instructions (DFARS Case 2011-D052)
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 the form used by contractors to request shipping instructions and the associated contract clause and clause prescription to cover both commercial and Government bills of lading, and to relocate the coverage within the DFARS.
DATES: Effective Date: June 29, 2012.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement Analyst, telephone 571-372-6098.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 77 FR 4637 on January 30, 2012, to relocate information from DFARS subpart 242.14 to DFARS part 247 to align with changes to the Federal Acquisition Regulation and to update DD Form 1659, Application for U.S. Government Shipping Documentation/Instructions, to provide for use of both commercial and Government bills of lading. No respondents submitted public comments in response to the proposed 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, 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 there are no substantive changes being made by this rule. The rule makes only two minor changes in terminology in the DD Form 1659 and the associated clause at DFARS 252.247-7028 (formerly DFARS 252.242-7003) in order to clarify that the DD Form 1659 can be used to request a bill of lading that inputs these shipments into the Defense Transportation System (DTS). The purpose of this form is to obtain shipping instructions, a practice that has been in effect for many years. Requesting shipping instructions does not impose a hardship on any entity. No comments were received from any entities concerning the impact of the proposed change on small business.
IV. Paperwork Reduction Act
This rule affects the certification and information collection requirements in the clause at DFARS 252.247-7028 (formerly DFARS 252.242-7003), Application for U.S. Government Shipping Documentation/Instructions, and the associated DD form 1659 (same title as the clause), currently approved under OMB Control Number 0704-0250, titled DFARS Part 242, Contract Administration and Audit Services, in the amount of 276,773 hours, in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because only minor changes in terminology are being made. There are no substantive changes made either to the form or the associated clause at DFARS 252.247-7028 (formerly 252.242-7003). No public comments were received on the paperwork impact in response to the proposed rule.
List of Subjects in 48 CFR Parts 212, 242, 247, and 252.
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 242, and 252 are amended as follows:
1. The authority citation for 48 CFR parts 212, 242, and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
2. Amend section 212.301 by adding paragraph (f)(iv)(P) to read as follows:
212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.
(f) * * *
(iv) * * *
(P) Use the clause at 252.247-7028, Application for U.S Government Shipping Documentation/Instructions, as prescribed in 247.207.
* * * * *
PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 242.14--[Removed]
3. Remove subpart 242.14.
PART 247--TRANSPORTATION
4. The authority citation for 48 CFR part 247 is revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
5. Add subpart 247.1, consisting of section 247.101, to read as follows:
Subpart 247.1--General
247.101 Policies.
(h) Shipping documents covering f.o.b. origin shipments.
(i) Procedures for the contractor to obtain bills of lading are in the clause at 252.247-7028, Application for U.S. Government Shipping Documentation/Instructions.
(ii) The term ``commercial bills of lading'' includes the use of any commercial form or procedure.
6. Revise section 247.207 to read as follows:
247.207 Solicitation provisions, contract clauses, and special requirements.
(1) Use the clause at 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge Adjustment to the Cost Bearer, in solicitations and contracts for carriage in which a motor carrier, broker, or freight forwarder will provide or arrange truck transportation services that provide for a fuel-related adjustment.
(2) Use the clause at 252.247-7028, Application for U.S. Government Shipping Documentation/Instructions, when shipping under Bills of Lading and Domestic Route Order under FOB origin contracts, Export Traffic Release regardless of FOB terms, or foreign military sales shipments.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.242-7003 [Removed and Reserved]
7. Remove and reserve section 252.242-7003.
8. Add section 252.247-7028 to read as follows:
252.247-7028 Application for U.S. Government Shipping Documentation/Instructions.
As prescribed in 247.207, use the following clause:
APPLICATION FOR U.S. GOVERNMENT SHIPPING DOCUMENTATION/INSTRUCTIONS (JUN 2012)
(a) Except as provided in paragraph (b) of this clause, the Contractor shall request bills of lading by submitting a DD Form 1659, Application for U.S. Government Shipping Documentation/Instructions, to the--
(1) Transportation Officer, if named in the contract schedule; or
(2) Contract administration office.
(b) If an automated system is available for shipment requests,
use service/agency systems (e.g., Navy's Global Freight Management-Electronic Transportation Acquisition (GFM-ETA) and Financial Air Clearance Transportation System (FACTS) Shipment Processing Module, Air Force's Cargo Movement Operations System, DCMA's Shipment Instruction Request (SIR) E-tool, and DLA's Distribution Standard System Vendor Shipment Module in lieu of DD Form 1659.
(End of clause)
[FR Doc. 2012-15568 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P
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[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15565]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 244, and 252
RIN 0750-AH39
Defense Federal Acquisition Regulation Supplement: Applicability of Hexavalent Chromium Policy to Commercial Items (DFARS Case 2011-D047)
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 the applicability to commercial items of DoD policies relating to the use of material containing hexavalent chromium.
DATES: Effective Date: June 29, 2012.
FOR FURTHER INFORMATION CONTACT: Mr. Dustin Pitsch, telephone 571-372-6090.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a final rule (DFARS Case 2009-D004) in the Federal Register at 76 FR 25569 on May 5, 2011, to implement in the DFARS the DoD policy addressing the serious human health and environmental risks related to the use of hexavalent chromium. Hexavalent chromium is a chemical that has been used in numerous DoD weapons systems platforms due to its corrosion protection properties. However, hexavalent chromium is a known carcinogen. The final rule, codified in a new DFARS clause 252.223-7008, minimized the use of materials containing hexavalent chromium in items acquired by DoD. Shortly after the final rule was published, DoD became aware of a drafting oversight and the need to correct the text of final rule to reflect DoD's intent that the rule should apply to commercial items. This rule corrects that oversight.
DoD published a proposed rule in the Federal Register at 76 FR 71926 on November 21, 2011, to clarify the applicability to commercial items of DoD policies relating to the use of materials containing hexavalent chromium. One respondent submitted a public comment in response to the proposed rule.
II. Discussion and Analysis of the Public Comments
DoD reviewed the public comment in the development of the final rule, which is discussed as follows.
Comment: The respondent stated that requiring different standards for chromated defense products than are required of commercial products imposes a significant cost related to the need for additional training and wastes already limited factory space. The respondent also stated that bringing defense product finishes into line with commercial finishes without sacrificing performance and maintaining a single process should improve production, efficiency, and quality.
Response: This comment is out of scope as the rule does not modify the DoD policy relating to the use of hexavalent chromium, it only clarifies the applicability of the previously published final rule. As such, the respondent's concerns are misplaced because this rule does not create any new requirements for commercial products; it simply makes clear the scope of applicability of DFARS clause 252.223-7008.
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 certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule is just correcting a drafting oversight in rule 2009-D004 published on May 5, 2011 (76 FR 25569).
V. 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 212, 244, and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR part 212, 244, and 252 are amended as follows:
1. The authority citation for 48 CFR parts 212, 244, and 252 continue to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
2. Amend section 212.301 by--
a. Redesignating paragraphs (f)(iv)(G) through (P) as paragraphs (f)(iv)(H) through (Q); and
b. Adding new paragraph (f)(iv)(G) to read as follows:
212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.
(f) * * *
(iv) * * *
(G) Use the clause at 252.223-7008, Prohibition of Hexavalent Chromium, as prescribed at 223.7306.
* * * * *
PART 244--SUBCONTRACTING POLICIES AND PROCEDURES
3. Revise section 244.403 to read as follows:
244.403 Contract clause.
Use the clause at 252.244-7000, Subcontracts for Commercial Items and Commercial Components (DoD Contracts), in solicitations and contracts for supplies or services other than commercial items that contain any of the clauses listed in the clause at 252.244-7000.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Revise section 252.244-7000 to read as follows:
252.244-7000 Subcontracts for Commercial Items and Commercial Components (DoD Contracts).
As prescribed in 244.403, use the following clause:
SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (DOD CONTRACTS) (JUN 2012)
In addition to the clauses listed in paragraph (c) of the Subcontracts for Commercial Items clause of this contract (Federal Acquisition Regulation 52.244-6), 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:
(a) 252.223-7008, Prohibition of Hexavalent Chromium (MAY 2011), if the subcontract is for supplies, maintenance and repair services, or construction materials.
(b) 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals (JUN 2012) (10 U.S.C. 2533b), if flow down is required in accordance with paragraph (e) of DFARS clause 252.225-7009.
(c) 252.225-7039, Contractors Performing Private Security Functions (JUN 2012) (Section 862 of Pub. L. 110-181, as amended by section 853 of Pub. L. 110-417 and sections 831 and 832 of Pub. L. 111-383), if the subcontract will be performed in areas of contingency operations, complex contingency operations, or other military operations or exercises designated by the Combatant Commander.
(d) 252.227-7015, Technical Data--Commercial Items (DEC 2011), if applicable (see 227.7102-4(a)), if flow down is required in accordance with paragraph (e) of DFARS clause 252.227-7015.
(e) 252.227-7037, Validation of Restrictive Markings on Technical Data (JUN 2012), if applicable (see 227.7102-4(c)), if the subcontract or supplier at any tier requires the delivery of technical data.
(f) 252.236-7013, Requirement for Competition Opportunity for American Steel Producers, Fabricators, and Manufacturers (JAN 2009) (Pub. L. 110-329, Division E, Section 108), if the subcontract involves the acquisition of steel as a construction material.
(g) 252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84), if the subcontract may require subcontractor personnel to interact with detainees in the course of their duties.
(h) 252.237-7019, Training for Contractor Personnel Interacting with Detainees (SEP 2006) (Section 1092 of Pub. L. 108-375), if the subcontract may require subcontractor personnel to interact with detainees in the course of their duties.
(i) 252.246-7003, Notification of Potential Safety Issues (JAN 2007), if flow down is required in accordance with paragraph (f) of DFARS clause 252.246-7003.
(j) 252.247-7023, Transportation of Supplies by Sea (MAY 2002) (10 U.S.C. 2631), if flow down is required in accordance with paragraph (h) of DFARS clause 252.247-7023.
(k) 252.247-7024, Notification of Transportation of Supplies by Sea (MAR 2000) (10 U.S.C. 2631), if flow down is required in accordance with paragraph (b) of DFARS clause 252.247-7024.
(End of clause)
[FR Doc. 2012-15565 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P