[Federal Register Volume 79, Number 214 (Wednesday, November 5, 2014)]
[Rules and Regulations]
[Pages 65592-65595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26179]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 217, 234, 237, and 252
RIN 0750-AI27
Defense Federal Acquisition Regulation Supplement: Clauses With
Alternates--Special Contracting Methods, Major System Acquisition, and
Service Contracting (DFARS Case 2014-D004)
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 revise and update clauses
and their prescriptions for special contracting methods, major system
acquisition, and service contracting to create basic and alternate
clauses structured in a manner to facilitate use of automated contract
writing systems. The rule also includes the full text of each
alternate, rather than only showing the paragraphs that differ from the
basic clause.
DATES: Effective November 5, 2014.
FOR FURTHER INFORMATION CONTACT: Ms. Janetta Brewer, telephone 571-372-
6104.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 79 FR
30535 on May 28, 2014, to revise provisions and clauses with alternates
and the associated prescriptions, in order to clarify usage and
facilitate the use of automated contract writing systems. No
respondents submitted comments in response to the proposed rule, and no
changes were made from the proposed rule in the final 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
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:
The purpose of this case is to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to create unique
prescriptions for the basic version and each alternate of DFARS parts
217, 234, and 237 solicitations provisions and clauses, and to include
the full text of each clause alternate.
The use of unique prescriptions for the basic version and each
alternate of DFARS solicitations provisions and clauses will facilitate
use of automated contract writing systems. The current convention
requires the prescription for the basic provision or clause to address
all the possibilities covered by the
[[Page 65593]]
alternates, and then the prescription for each alternate addresses only
what is different for the use of that particular alternate. This rule
revises the prescriptions so that the basic solicitation provision or
clause and each alternate is unique and stands on its own. The
prescriptions are not revised in any way to change when they are
applicable to offerors, contractors, or subcontractors.
Additionally, the inclusion of the full text of each provision or
clause alternate aims to make the terms of a provision or clause
alternate clearer to offerors, as well as to DoD contracting officers.
Instead of the current convention for alternates to show only
paragraphs changed from the basic version of the provision or clause,
this rule proposes to include the full text of each version of the
clause. This will assist in making the terms of the clause clearer,
because all paragraph substitutions will have already been made.
Inapplicable paragraphs from the basic version of the clause that are
superseded by the alternate are not included in the solicitation or
contract to prevent confusion.
According to the Federal Procurement Data System, in fiscal year
2012, DoD made approximately 270,000 contract awards (not including
modification and orders) that exceeded the micro-purchase threshold, of
which approximately 180,000 (67%) were awarded to small businesses. It
is unknown how many of these contracts were awarded that included an
alternate to a DFARS provision or clause. This rule may result in
potential offerors, including small businesses, expending more time to
become familiar with and to understand the new format of the clause
alternates in full text contained in contracts issued by any DoD
contracting activity. The rule also anticipates saving contractors time
by making all paragraph substitutions from the basic version of the
clause, and not requiring the contractors to read inapplicable
paragraphs contained in the basic version of the clause where
alternates are also included in the solicitations and contracts. The
overall burden caused by this rule is expected to be negligible and
will not be any greater on small businesses than it is on large
businesses.
No comments were received in response to the initial regulatory
flexibility analysis.
This rule does not add any new reporting or recordkeeping
requirements. The rule does not duplicate, overlap, or conflict with
any other Federal rules. No alternatives were identified that will
accomplish the objectives of the rule.
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 217, 234, 237, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 217, 234, 237, and 252 are amended as
follows:
0
1. The authority citation for 48 CFR parts 217, 234, 237, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 217--SPECIAL CONTRACTING METHODS
0
2. In section 217.208-70, revise paragraph (a) to read as follows:
217.208-70 Additional clauses.
(a) Use the basic or the alternate of the clause at 252.217-7000,
Exercise of Option to Fulfill Foreign Military Sales Commitments, in
solicitations and contracts when an option may be used for foreign
military sales requirements. Do not use the basic or the alternate of
this clause in contracts for establishment or replenishment of DoD
inventories or stocks, or acquisitions made under DoD cooperative
logistics support arrangements.
(1) Use the basic clause when the foreign military sales country is
known at the time of solicitation or award.
(2) Use the alternate I clause when the foreign military sale
country is not known at the time of solicitation or award.
* * * * *
PART 234--MAJOR SYSTEM ACQUISITION
0
3. Revise section 234.7101 to read as follows:
234.7101 Solicitation provision and contract clause.
(a) Use the basic or the alternate of the provision at 252.234-
7003, Notice of Cost and Software Data Reporting System, in any
solicitation that includes the basic or the alternate of the clause at
252.234-7004, Cost and Software Data Reporting.
(1) Use the basic provision when the solicitation includes the
clause at 252.234-7004, Cost and Software Data Reporting--Basic.
(2) Use the alternate I provision when the solicitation includes
the clause at 252.234-7004, Cost and Software Data Reporting--Alternate
I.
(b) Use the basic or the alternate of the clause at 252.234-7004,
Cost and Software Data Reporting System, in solicitations that include
major defense acquisition programs or major automated information
system programs as follows:
(1) Use the basic clause in solicitations and contracts for major
defense acquisition programs or major automated information system
programs that exceed $50 million.
(2) Use the alternate I clause in solicitations and contracts for
major defense acquisition programs or major automated information
system programs with a value equal to or greater than $20 million, but
less than or equal to $50 million, when so directed by the program
manager with the approval of the OSD Deputy Director, Cost Assessment.
PART 237--SERVICE CONTRACTING
0
4. In section 237.7003, revise paragraph (a) to read as follows:
237.7003 Solicitation provisions and contract clauses.
(a) Use the basic or the alternate of the provision at 252.237-
7002, Award to Single Offeror, in solicitations and contracts for
mortuary services.
(1) Use the basic provision in all sealed bid solicitations for
mortuary services.
(2) Use the alternate I provision in all negotiated solicitations
for mortuary services.
* * * * *
0
5. In section 237.7101, revise paragraph (e) to read as follows:
237.7101 Solicitation provisions and contract clauses.
* * * * *
(e) Use the basic or an alternate of the clause at 252.237-7016,
Delivery Tickets, in all solicitations and contracts for laundry and
dry cleaning services.
(1) Use the basic clause when services are not to be provided on a
bulk weight basis.
(2) Use the alternate I clause when services are for bag type
laundry to be provided on a bulk weight basis.
(3) Use the alternate II clause when services are unsorted laundry
to be provided on a bulk weight basis.
* * * * *
[[Page 65594]]
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. Amend section 252.217-7000 by--
0
a. Revising the introductory text, clause title, and date;
0
b. Amending paragraph (b) by removing ``(Insert name of country, or To
Be Determined)'' and adding ``(Insert name of country)'' in its place;
and
0
b. Revising Alternate I.
The revisions read as follows:
252.217-7000 Exercise of option to fulfill foreign military sales
commitments.
As prescribed in 217.208-70(a), use one of the following clauses:
Basic. As prescribed in 217.208-70(a)(1), use the following clause:
EXERCISE OF OPTION TO FULFILL FOREIGN MILITARY SALES COMMITMENTS--BASIC
(NOV 2014)
* * * * *
Alternate I. As prescribed in 217.208-70(a)(2), use the following
clause, which uses a different paragraph (b) than paragraph (b) of the
basic clause:
EXERCISE OF OPTION TO FULFILL FOREIGN MILITARY SALES COMMITMENTS--
ALTERNATE I (NOV 2014)
(a) The Government may exercise the option(s) of this contract
to fulfill foreign military sales commitments.
(b) On the date the option is exercised, the Government shall
identify the foreign country for the purpose of negotiating any
equitable adjustment attributable to foreign military sales. Failure
to agree on an equitable adjustment shall be treated as a dispute
under the Disputes clause of this contract.
End of clause
0
7. Amend section 252.234-7003 by--
0
a. Revising the introductory text, provision title, and date;
0
b. In paragraph (b) introductory text removing ``offeror'' and adding
``Offeror'' in its place; and
0
c. Revising Alternate I.
The revisions read as follows:
252.234-7003 Notice of Cost and Software Data Reporting System.
As prescribed in 234.7101(a), use one of the following provisions:
Basic. As prescribed in 234.7101(a)(1), use the following
provision:
NOTICE OF COST AND SOFTWARE DATA REPORTING SYSTEM--BASIC (NOV 2014)
* * * * *
Alternate I. As prescribed in 234.7101(a)(2), use the following
provision, which uses a different paragraph (c) than the basic
provision:
NOTICE OF COST AND SOFTWARE DATA REPORTING SYSTEM--ALTERNATE I (NOV
2014)
(a) This solicitation includes--
(1) The Government-approved cost and software data reporting
(CSDR) plan for the contract, DD Form 2794; and
(2) The related Resource Distribution Table.
(b) As part of its proposal, the Offeror shall--
(1) Describe the process to be used to satisfy the requirements
of the DoD 5000.04-M-1, CSDR Manual, and the Government-approved
CSDR plan for the proposed contract;
(2) Demonstrate how contractor cost and data reporting (CCDR)
will be based, to the maximum extent possible, upon actual cost
transactions and not cost allocations;
(3) Demonstrate how the data from its accounting system will be
mapped into the standard reporting categories required in the CCDR
data item descriptions;
(4) Describe how recurring and nonrecurring costs will be
segregated;
(5) Provide comments on the adequacy of the CSDR contract plan
and related Resource Distribution Table; and
(6) Submit the DD Form 1921, Cost Data Summary Report, and DD
Form 1921-1, Functional Cost-Hour Report, with its pricing proposal.
(c) CSDR reporting will be required for subcontractors for
selected subcontracts identified in the CSDR contract plan as
requiring such reporting. The offeror shall identify, by providing
comments on the Resource Distribution Table, the subcontractors, or,
if the subcontractors have not been selected, the subcontracted
effort.
(End of provision)
0
8. Amend section 252.234-7004 by--
0
a. Revising the introductory text, clause title, and date; and
0
b. Revising Alternate I.
The revisions read as follows:
252.234-7004 Cost and Software Data Reporting System.
As prescribed in 234.7101(b), use one of the following clauses:
Basic. As prescribed at 234.7101(b)(1), use the following clause:
COST AND SOFTWARE DATA REPORTING SYSTEM--BASIC (NOV 2014)
* * * * *
Alternate I. As prescribed in 234.7101(b)(2), use the following
clause, which uses a different paragraph (b) than the basic clause:
COST AND SOFTWARE DATA REPORTING SYSTEM--ALTERNATE I (NOV 2014)
(a) In the performance of this contract, the Contractor shall
use--
(1) A documented standard cost and software data reporting
(CSDR) process that satisfies the guidelines contained in the DoD
5000.04-M-1, CSDR Manual;
(2) Management procedures that provide for generation of timely
and reliable information for the contractor cost data reports
(CCDRs) and software resources data reports (SRDRs) required by the
CCDR and SRDR data items of this contract; and
(3) The Government-approved CSDR plan for this contract, DD Form
2794, and the related Resource Distribution Table as the basis for
reporting in accordance with the required CSDR data item
descriptions (DIDs).
(b) The Contractor shall require CSDR reporting from selected
subcontractors identified in the CSDR contract plan as requiring
such reporting. If the Contractor changes subcontractors or makes
new awards for selected subcontract effort, the Contractor shall
notify the Government.
(End of clause)
0
9. Amend section 252.237-7002 by--
0
a. Revising the introductory text, provision title, and date; and
0
b. Revising Alternate I.
The revisions read as follows:
252.237-7002 Award to single offeror.
As prescribed in 237.7003(a), use one of the following provisions:
Basic. As prescribed in 237.7003(a)(1), use the following
provision:
AWARD TO SINGLE OFFEROR--BASIC (NOV 2014)
* * * * *
Alternate I. As prescribed in 237.7003(a)(2), use the following
provision, which uses a different paragraph (d) than the basic
provision:
AWARD TO SINGLE OFFEROR--ALTERNATE I (NOV 2014)
(a) Award shall be made to a single offeror.
(b) Offerors shall include unit prices for each item. Failure to
include unit prices for each item will be cause for rejection of the
entire offer.
(c) The Government will evaluate offers on the basis of the
estimated quantities shown.
(d) Award will be made to that responsive, responsible offeror
whose total aggregate offer is in the best interest of the
Government.
(End of provision)
0
10. Amend section 252.237-7016 by--
0
a. Revising the introductory text, clause title, and date; and
0
b. Revising Alternates I and II.
252.237-7016 Delivery tickets.
As prescribed in 237.7101(e), use one of the following clauses:
Basic. As prescribed in 237.7101(e)(1), use the following clause:
DELIVERY TICKETS--BASIC (NOV 2014)
* * * * *
Alternate I. As prescribed in 237.7101(e)(2), use the following
clause, which includes paragraphs (c), (d), and (e) not included in the
basic clause:
[[Page 65595]]
DELIVERY TICKETS--ALTERNATE I (NOV 2014)
(a) The Contractor shall complete delivery tickets in the number
of copies required and in the form approved by the Contracting
Officer, when it receives the articles to be serviced.
(b) The Contractor shall include one copy of each delivery
ticket with its invoice for payment.
(c) Before the Contractor picks up articles for service under
this contract, the Contracting Officer will ensure that--
(1) Each bag contains only articles within a single bag type as
specified in the schedule; and
(2) Each bag is weighed and the weight and bag type are
identified on the bag.
(d) The Contractor shall, at time of pickup--
(1) Verify the weight and bag type and record them on the
delivery ticket; and
(2) Provide the Contracting Officer, or representative, a copy
of the delivery ticket.
(e) At the time of delivery, the Contractor shall record the
weight and bag type of serviced laundry on the delivery ticket. The
Contracting Officer will ensure that this weight and bag type are
verified at time of delivery.
(End of clause)
Alternate II. As prescribed in 237.7101(e)(3), use the following
clause, which includes paragraphs (c), (d), and (e) not included in the
basic clause:
DELIVERY TICKETS--ALTERNATE II (NOV 2014)
(a) The Contractor shall complete delivery tickets in the number
of copies required and in the form approved by the Contracting
Officer, when it receives the articles to be serviced.
(b) The Contractor shall include one copy of each delivery
ticket with its invoice for payment.
(c) Before the Contractor picks up articles for service under
this contract, the Contracting Officer will ensure that each bag is
weighed and that the weight is identified on the bag.
(d) The Contractor, at time of pickup, shall verify and record
the weight on the delivery ticket and shall provide the Contracting
Officer, or representative, a copy of the delivery ticket.
(e) At the time of delivery, the Contractor shall record the
weight of serviced laundry on the delivery ticket. The Contracting
Officer will ensure that this weight is verified at time of
delivery.
(End of clause)
[FR Doc. 2014-26179 Filed 11-4-14; 8:45 am]
BILLING CODE 5001-06-P