[Federal Register Volume 78, Number 235 (Friday, December 6, 2013)]
[Proposed Rules]
[Pages 73472-73474]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29156]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211, 212, and 232

RIN 0750-AI13


Defense Federal Acquisition Regulation Supplement: Application of 
Certain Clauses to Acquisitions of Commercial Items (DFARS Case 2013-
D035)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to clarify the applicability of two 
clauses to acquisitions of commercial items.

DATES: Comment Date: Comments on the proposed rule should be submitted 
in writing to the address shown below on or before February 4, 2014, to 
be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2013-D035, using 
any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by entering ``DFARS Case 
2013-D035'' under the heading ``Enter keyword or

[[Page 73473]]

ID'' and selecting ``Search.'' Select the link ``Submit a Comment'' 
that corresponds with ``DFARS Case 2013-D035.'' Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``DFARS Case 2013-D035'' on your attached 
document.
     Email: dfars@mail.mil. Include DFARS Case 2013-D035 in the 
subject line of the message.
     Fax: 571-372-6094.
     Mail: Defense Acquisition Regulations System, Attn: Ms. 
Susan C. 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).

FOR FURTHER INFORMATION CONTACT: Susan C. Williams, Defense Acquisition 
Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6092; facsimile 
571-372-6101.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise DFARS part 212, Acquisition of 
Commercial Items, to clarify the applicability of DFARS 252.211-7008, 
Use of Government-Assigned Serial Numbers, and DFARS 252.232-7006, Wide 
Area WorkFlow Payment Instructions, to acquisitions of commercial items 
by adding them to the list at 212.301(f) and revising the clause 
prescriptions to require their inclusion in solicitations and contracts 
for acquisitions of commercial items using FAR part 12 procedures.
    DFARS 252.211-7008 is not listed for use in commercial acquisitions 
at 212.301(f); nor does the clause prescription at 211.274-6(c) address 
applicability to commercial item acquisitions. DFARS 252.211-7008 is 
prescribed for use in solicitations and contracts that include the 
clause at DFARS 252.211-7003, Item Identification and Valuation, and 
that also require the contractor to mark major end items (211.274-
6(c)). DFARS 252.211-7003 is required to be included in solicitations 
and contracts for commercial items (see DFARS 212.301(f) and 211.274-
6(a)(1)).
    DFARS 252.232-7006 is prescribed for use when DFARS 252.232-7003 is 
used, unless the circumstances of 232.7003(b) or (c) apply 
(232.7004(b)). DFARS 252.232-7003 is required to be included in 
solicitations and contracts for commercial items except under limited 
circumstances provided in 232.7002(a)(see DFARS 212.301(f) and 
232.7004(a)).

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 does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because this rule merely provides explicit clarification of the 
applicability of DFARS 252.211-7008, Use of Government-Assigned Serial 
Numbers, and DFARS 252.232-7006, Wide Area WorkFlow Payment 
Instructions, to acquisitions of commercial items. Nevertheless, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    DFARS part 212, Acquisition of Commercial Items, is being revised 
to clarify the applicability of DFARS 252.211-7008, Use of Government-
Assigned Serial Numbers, and DFARS 252.232-7006, Wide Area WorkFlow 
Payment Instructions, to acquisitions of commercial items by adding 
them to the list at 212.301(f) and revising the clause prescriptions to 
specifically include them in solicitations and contracts for 
acquisitions using FAR part 12 procedures.
    According to the Federal Procurement Data System, in Fiscal Year 
2012, DoD made approximately 95,000 contract awards (not including 
modifications and orders) that exceeded the micro-purchase threshold, 
using FAR part 12 procedures, of which approximately 60,000 (63%) were 
awarded to about 35,000 unique small business entities. This rule is 
likely to have a slightly positive impact because the additional 
clarity will help contracting officers and small businesses to better 
understand DoD's requirements. This rule does not add any information 
collection requirements. The rule does not duplicate, overlap, or 
conflict with any other Federal rules. Also, no alternatives were 
identified that will accomplish the objectives of the rule.
    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 2013-D35), in 
correspondence.

IV. Paperwork Reduction Act

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

List of Subjects in 48 CFR Parts 211, 212, and 232

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.
    Therefore, 48 CFR parts 211, 212, and 232 are proposed to be 
amended as follows:

0
1. The authority citation for parts 211, 212, and 232 continues to read 
as follows:

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

PART 211--DESCRIBING AGENCY NEEDS

0
2. In section 211.274-6, paragraph (c) introductory text is revised to 
read as follows:


211.274-6  Contract clauses.

* * * * *
    (c) Use the clause at 252.211-7008, Use of Government-Assigned 
Serial Numbers, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, that-
* * * * *

[[Page 73474]]

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
3. Amend section 212.301 by--
0
a. Redesignating--
0
i. Paragraphs (f)(l) through (lxviii) as (f)(lii) through (lxx);
0
ii. Paragraphs (f)(xii) through (xlix) as (f)(xiii) through (l).
0
b. Adding new paragraphs (f)(xii) and (li).
    The additions read as follows:


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

    (f) * * *
    (xii) Use the clause at 252.211-7008, Use of Government-Assigned 
Serial Numbers, as prescribed in 211.274-6(c).
* * * * *
    (li) Use the clause at 252.232-7006, Wide Area WorkFlow Payment 
Instructions, as prescribed in 232.7004(b).
* * * * *

PART 232--CONTRACT FINANCING

0
4. In section 232.7004, revise the section heading and paragraph (b) to 
read as follows:


232.7004  Contract clauses.

* * * * *
    (b) Use the clause at 252.232-7006, Wide Area WorkFlow Payment 
Instructions, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, when 252.232-7003 is used and neither 232.7003(b) nor 
(c) apply. See PGI 232.7004 for instructions on completing the clause.

[FR Doc. 2013-29156 Filed 12-5-13; 8:45 am]
BILLING CODE 5001-06-P