[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19128-19131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7559]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204, 209, 216, 229, and 252

RIN 0750-AH38


Defense Federal Acquisition Regulation Supplement: Separation of 
Combined Provisions and Clauses (DFARS Case 2011-D048)

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 separate provisions and 
clauses that are currently combined in order to be in compliance with 
DFARS drafting conventions.

DATES: Effective Date: March 30, 2012.

FOR FURTHER INFORMATION CONTACT: Amy G. Williams, telephone 571-372-
6106.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published a proposed rule in the Federal Register at 76 FR 
71922 on November 21, 2011, to separate provisions and clauses that are 
currently combined in order to comply with DFARS drafting conventions. 
A provision is included only in the solicitation, and generally 
includes representations and certifications, to which the offeror 
responds in its offer. A contract clause is included in both the 
solicitation and the resultant contract, and provides the terms that 
apply throughout contract performance. It is inconsistent with DFARS 
drafting conventions to combine a provision and a clause in a single 
clause. This rule removes the representations from the following five 
DFARS clauses and creates five new provisions to be used in 
solicitations that include the associated clauses:

[[Page 19129]]



------------------------------------------------------------------------
           From DFARS clause                     To new provision
------------------------------------------------------------------------
252.209-7005, Reserve Officer Training   252.209-7003, Reserve Officer
 Corps and Military Recruiting on         Training Corps and Military
 Campus.                                  Recruiting on Campus--
                                          Representation.
252.216-7000, Economic Price             252.216-7007, Economic Price
 Adjustment--Basic Steel, Aluminum,       Adjustment--Basic Steel,
 Brass, Bronze, or Copper Mill Products.  Aluminum, Brass, Bronze, or
                                          Copper Mill Products--
                                          Representation.
252.216-7003, Economic Price             252.216-7008, Economic Price
 Adjustment--Wage Rates or Material       Adjustment--Wage Rates or
 Prices Controlled by a Foreign           Material Prices Controlled by
 Government.                              a Foreign Government--
                                          Representation.
252.229-7003, Tax Exemptions (Italy)...  252.229-7012, Tax Exemptions
                                          (Italy)--Representation.
252.229-7005, Tax Exemptions (Spain)...  252.229-7013, Tax Exemptions
                                          (Spain)--Representation.
------------------------------------------------------------------------

    Conforming changes are also required to DFARS 252.204-7007, 
Alternate A, Annual Representations and Certifications, and the 
associated prescriptions at DFARS 204.1202(2) to list the new 
provisions in lieu of the current DFARS clauses.

II. Discussion and Analysis of the Public Comments

    There were no public responses submitted that pertained to the 
proposed rule. Minor changes made to the proposed rule include adding 
new clause numbers and dates, edits to section titles as required to 
reflect the addition of new provisions, and minor editorial and 
grammatical changes to paragraph (a) of 252.229-7005, Tax Exemptions 
(Spain).

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 it does not add any new requirements--it only reformats 
existing requirements of five clauses into separate provisions and 
clauses.

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 204, 209, 216, 229, and 252

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 204, 209, 216, 229, and 252 are amended as 
follows:

0
1. The authority citation for 48 CFR parts 204, 209, 216, and 229 is 
revised to read as follows:

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

PART 204--ADMINISTRATIVE MATTERS

0
2. Amend section 204.1202 by revising paragraphs (2)(ii), (iii), (iv), 
(xi), and (xii) to read as follows:


204.1202  Solicitation provision.

* * * * *
    (2) * * *
    (ii) 252.209-7002, Disclosure of Ownership or Control by a Foreign 
Government.
    (iii) 252.209-7003, Reserve Officer Training Corps and Military 
Recruiting on Campus--Representation.
    (iv) 252.216-7008, Economic Price Adjustment--Wage Rates or 
Material Prices Controlled by a Foreign Government--Representation.
* * * * *
    (xi) 252.229-7012, Tax Exemptions (Italy)--Representation.
    (xii) 252.229-7013, Tax Exemptions (Spain)--Representation.

PART 209--CONTRACTOR QUALIFICATIONS

0
3. Revise section 209.470-4 to read as follows:


209.470-4   Solicitation provision and contract clause.

    (a) Use the provision at 252.209-7003, Reserve Officer Training 
Corps and Military Recruiting on Campus--Representation, in all 
solicitations with institutions of higher education.
    (b) Use the clause at 252.209-7005, Reserve Officer Training Corps 
and Military Recruiting on Campus, in all solicitations and contracts 
with institutions of higher education.

PART 216--TYPES OF CONTRACTS

0
4. Amend section 216.203-4-70 by--
0
a. Revising the section heading; and
0
b. Revising paragraphs (a) and (c) to read as follows:


216.203-4-70   Additional provisions and clauses.

    (a) Price adjustment for basic steel, aluminum, brass, bronze, or 
copper mill products. (1)(i) The price adjustment clause at 252.216-
7000, Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, 
or Copper Mill Products, may be used in fixed-price supply 
solicitations and contracts for basic steel, aluminum, brass, bronze, 
or copper mill products, such as sheets, plates, and bars, when an 
established catalog or market price exists for the particular product 
being acquired.
    (ii) The 10 percent figure in paragraph (d)(1) of the clause shall 
not be exceeded unless approval is obtained at a level above the 
contracting officer.
    (2) Use the price adjustment provision at 252.216-7007, Economic 
Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, or Copper Mill 
Products--Representation, in solicitations that include the clause at 
252.216-7000, Economic Price Adjustment--Basic Steel, Aluminum, Brass, 
Bronze, or Copper Mill Products.
* * * * *
    (c) Price adjustment for wage rates or material prices controlled 
by a foreign government. (1)(i) The price adjustment clause at 252.216-
7003, Economic Price Adjustment--Wage Rates or Material Prices 
Controlled by a Foreign Government, may be used in fixed-price supply 
and service solicitations and contracts when--
    (A) The contract is to be performed wholly or in part in a foreign 
country; and
    (B) A foreign government controls wage rates or material prices and 
may, during contract performance, impose a

[[Page 19130]]

mandatory change in wages or prices of material.
    (ii) Verify the base wage rates and material prices prior to 
contract award and prior to making any adjustment in the contract 
price.
    (2) Use the provision at 252.216-7008, Economic Price Adjustment--
Wage Rates or Material Prices Controlled by a Foreign Government--
Representation, in solicitations that include the clause DFARS 252.216-
7003, Economic Price Adjustment--Wage Rates or Material Prices 
Controlled by a Foreign Government.

PART 229--TAXES

0
5. Amend section 229.402-70 by--
0
a. Revising the section heading; and
0
b. Revising paragraphs (c) and (e) to read as follows:


229.402-70   Additional provisions and clauses.

* * * * *
    (c)(1) Use the clause at 252.229-7003, Tax Exemptions (Italy), in 
solicitations and contracts when contract performance will be in Italy.
    (2) Use the provision at 252.229-7012, Tax Exemptions (Italy)--
Representation, in solicitations that contain the clause at 252.229-
7003, Tax Exemptions (Italy).
* * * * *
    (e)(1) Use the clause at 252.229-7005, Tax Exemptions (Spain), in 
solicitations and contracts when contract performance will be in Spain.
    (2) Use the provision at 252.229-7013, Tax Exemptions (Spain)--
Representation, in solicitations that contain the clause at 252.229-
7005, Tax Exemptions (Spain).
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. The authority citation for 48 CFR part 252 continues to read as 
follows:

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


0
7. Amend section 252.204-7007 by--
0
a. Amending the clause date by removing ``(NOV 2011)'' and adding in 
its place ``(MAR 2012)''; and
0
b. Revising paragraph (d)(1) to read as follows:


252.204-7007   Alternate A, Annual Representations and Certifications.

* * * * *
    (d)(1) The following representations or certifications in ORCA are 
applicable to this solicitation as indicated:
    (i) 252.209-7001, Disclosure of Ownership or Control by the 
Government of a Terrorist Country. Applies to all solicitations 
expected to result in contracts of $150,000 or more.
    (ii) 252.209-7003, Reserve Officer Training Corps and Military 
Recruiting on Campus--Representation. Applies to all solicitations with 
institutions of higher education.
    (iii) 252.216-7008, Economic Price Adjustment--Wage Rates or 
Material Prices Controlled by a Foreign Government. Applies to 
solicitations for fixed-price supply and service contracts when the 
contract is to be performed wholly or in part in a foreign country, and 
a foreign government controls wage rates or material prices and may 
during contract performance impose a mandatory change in wages or 
prices of materials.
    (iv) 252.225-7042, Authorization to Perform. Applies to all 
solicitations when performance will be wholly or in part in a foreign 
country.
    (v) 252.229-7012, Tax Exemptions (Italy)--Representation. Applies 
to solicitations when contract performance will be in Italy.
    (vi) 252.229-7013, Tax Exemptions (Spain)--Representation. Applies 
to solicitations when contract performance will be in Spain.
* * * * *

0
8. Add section 252.209-7003 to read as follows:


252.209-7003   Reserve Officer Training Corps and Military Recruiting 
on Campus-Representation.

    As prescribed in 209.470-4(a), use the following provision:

RESERVE OFFICER TRAINING CORPS AND MILITARY RECRUITING ON CAMPUS--
REPRESENTATION (MAR 2012)

    (a) Definition. ``Institution of higher education,'' as used in 
this provision, is defined in the clause at 252.209-7005, Reserve 
officer Training Corps and Military Recruiting on Campus.
    (b) Limitation on contract award. Except as provided in 
paragraph (c) of this provision, an institution of higher education 
is ineligible for contract award if the Secretary of Defense 
determines that the institution has a current policy or practice 
(regardless of when implemented) that prohibits or in effect 
prevents--
    (1) The Secretary of a military department from maintaining, 
establishing, or operating a unit of the Senior Reserve Officer 
Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other 
applicable Federal laws) at that institution;
    (2) A student at that institution from enrolling in a unit of 
the Senior ROTC at another institution of higher education;
    (3) The Secretary of a military department or the Secretary of 
Transportation from gaining entry to campuses, or access to students 
(who are 17 years of age or older) on campuses, for purposes of 
military recruiting; or
    (4) Military recruiters from accessing, for purposes of military 
recruiting, the following information pertaining to students (who 
are 17 years of age or older) enrolled at that institution:
    (i) Name.
    (ii) Address.
    (iii) Telephone number.
    (iv) Date and place of birth.
    (v) Educational level.
    (vi) Academic major.
    (vii) Degrees received.
    (viii) Most recent educational institution enrollment.
    (c) Exception. The limitation in paragraph (b) of this provision 
does not apply to an institution of higher education if the 
Secretary of Defense determines that the institution has a long-
standing policy of pacifism based on historical religious 
affiliation.
    (d) Representation. By submission of its offer, the offeror 
represents that the institution does not have any policy or practice 
described in paragraph (b) of this clause, unless the Secretary of 
Defense has determined that the institution has a long-standing 
policy of pacifism based on historical religious affiliation.


(End of provision)


0
9. Amend section 252.209-7005 by--
0
a. Amending the introductory text by removing ``209.470-4'' and adding 
in its place ``209.470-4(b)'';
0
b. Amending the clause date by removing ``(JAN 2000)'' and adding in 
its place ``(MAR 2012)'';
0
c. Revising introductory text of paragraph (b);
0
d. Removing paragraph (d);
0
e. Redesignating paragraph (e) as paragraph (d); and
0
f. Revising the introductory text of the newly redesignated paragraph 
(d).
    The revisions read as follows:


252.209-7005   Reserve Officer Training Corps and military recruiting 
on campus.

* * * * *
    (b) Limitation. Except as provided in paragraph (c) of this clause, 
the Contractor shall not, during performance of this contract, have any 
policy or practice that prohibits or in effect prevents--
* * * * *
    (d) Notwithstanding any other clause of this contract, if the 
Secretary of Defense determines that the Contractor misrepresented its 
policies and practices at the time of contract award or has violated 
the prohibition in paragraph (b) of this clause--
* * * * *

0
10. Amend section 252.216-7000 by--
0
a. Amending the introductory text by removing ``216.203-4-70(a)'' and 
adding in its place ``216.203-4-70(a)(1)'';

[[Page 19131]]

0
b. Amending the clause date by removing ``(JUL 1997)'' and adding in 
its place ``(MAR 2012)''; and
0
c. Revising paragraph (b) to read as follows:


252.216-7000   Economic price adjustment--basic steel, aluminum, brass, 
bronze, or copper mill products.

* * * * *
    (b) As represented by the Contractor in its offer, the unit price 
stated for ---------------- (Identify the item) is not in excess of the 
Contractor's established price in effect on the date set for opening of 
bids (or the contract date if this is a negotiated contract) for like 
quantities of the same item. This price is the net price after applying 
any applicable standard trade discounts offered by the Contractor from 
its catalog, list, or schedule price.
* * * * *

0
11. Amend section 252.216-7003 by--
0
a. Amending the introductory text by removing ``216.203-4-70(c)'' and 
adding in its place ``216.203-4-70(c)(1)'';
0
b. Amending the clause date by removing ``(JUN 1997) and adding in its 
place ``(MAR 2012)''; and
0
c. Revising paragraph (a) to read as follows:


252.216-7003   Economic price adjustment-wage rates or material prices 
controlled by a foreign government.

* * * * *
    (a) As represented by the Contractor in its offer, the prices set 
forth in this contract--
    (1) Are based on the wage rates or material prices established and 
controlled by the government of the country specified by the Contractor 
in its offer; and
    (2) Do not include contingency allowances to pay for possible 
increases in wage rates or material prices.
* * * * *

0
12. Add section 252.216-7007 to read as follows:


252.216-7007   Economic price adjustment--basic steel, aluminum, brass, 
bronze, or copper mill products-representation.

    As prescribed in 216.203-4-70(a)(2), use the following provision:

ECONOMIC PRICE ADJUSTMENT--BASIC STEEL, ALUMINUM, BRASS, BRONZE, OR 
COPPER MILL PRODUCTS--REPRESENTATION (MAR 2012)

    (a) Definitions. The terms ``established price'' and ``unit 
price,'' as used in this provision, have the meaning given in the 
clause 252.216-7000, Economic Price Adjustment--Basic Steel, 
Aluminum, Brass, Bronze, or Copper Mill Products.
    (b) By submission of its offer, the offeror represents that the 
unit price stated in this offer for ---------------- (Identify the 
item) is not in excess of the offeror's established price in effect 
on the date set for opening of bids (or the contract date if this is 
to be a negotiated contract) for like quantities of the same item. 
This price is the net price after applying any applicable standard 
trade discounts offered by the offeror from its catalog, list, or 
schedule price.


(End of provision)


0
13. Add section 252.216-7008 to read as follows:


252.216-7008  Economic price adjustment--wage rates or material prices 
controlled by a foreign government--representation.

    As prescribed in 216.203-4-70(c)(2), use the following provision:

Economic Price Adjustment--Wage Rates or Material Prices Controlled by 
a Foreign Government--Representation (MAR 2012)

    (a) By submission of its offer, the offeror represents that the 
prices set forth in this offer--
    (1) Are based on the wage rate(s) or material price(s) 
established and controlled by the government of ---------------- 
(Offeror insert name of host country); and
    (2) Do not include contingency allowances to pay for possible 
increases in wage rates or material prices.


(End of provision)


0
14. Amend section 252.229-7003 by--
0
a. Amending the introductory text by removing ``229.402-70(c)'' and 
adding in its place ``229.402-70(c)(1)'';
0
b. Amending the clause date by removing ``(JAN 2002)'' and adding in 
its place ``(MAR 2012)''; and
0
c. Revising paragraph (a) to read as follows:


252.229-7003   Tax Exemptions (Italy).

* * * * *
    (a) As the Contractor represented in its offer, the contract price, 
including the prices in subcontracts awarded under this contract, does 
not include taxes from which the United States Government is exempt.
* * * * *

0
15. Amend section 252.229-7005 by--
0
a. Amending the introductory text by removing ``229.402-70(e)'' and 
adding in its place ``229.402-70(e)(1)'';
0
b. Amending the clause date by removing ``(JUN 1997)'' and adding in 
its place ``(MAR 2012)''; and
0
c. Revising paragraph (a) to read as follows:


252.229-7005   Tax exemptions (Spain).

* * * * *
    (a) As the Contractor represented in its offer, the contract price, 
including the prices in subcontracts awarded under this contract, does 
not include taxes from which the United States Government is exempt.
* * * * *

0
16. Add section 252.229-7012 to read as follows:


252.229-7012   Tax exemptions (Italy)--representation.

    As prescribed in 229.402-70(c)(2), use the following provision:

TAX EXEMPTIONS (ITALY)--REPRESENTATION (MAR 2012)

    (a) Exemptions. The United States Government is exempt from 
payment of--
    (1) Imposta Valore Aggiunto (IVA) tax in accordance with Article 
72 of the IVA implementing decree on all supplies and services sold 
to United States Military Commands in Italy; and
    (2) The other taxes specified in paragraph (c) of the clause 
DFARS 252.229-7003, Tax Exemptions (Italy).
    (b) Representation. By submission of its offer, the offeror 
represents that the offered price, including the prices of 
subcontracts to be awarded under the contract, does not include the 
taxes identified herein, or any other taxes from which the United 
States Government is exempt.


(End of provision)


0
17. Add section 252.229-7013 to read as follows:


252.229-7013   Tax exemptions (Spain)--representation.

    As prescribed in 229.402-70(e)(2), use the following clause:

TAX EXEMPTIONS (SPAIN)--REPRESENTATION (MAR 2012)

    (a) Exemptions. In accordance with tax relief agreements between 
the United States Government and the Spanish Government, and because 
the resultant contract arises from the activities of the United 
States Forces in Spain, the contract will be exempt from the excise, 
luxury, and transaction taxes listed in paragraph (b) of the clause 
DFARS 252.229-7005, Tax Exemptions (Spain).
    (b) Representation. By submission of its offer, the offeror 
represents that the offered price, including the prices of 
subcontracts to be awarded under the contract, does not include the 
taxes identified herein, or any other taxes from which the United 
States Government is exempt.


(End of provision)

[FR Doc. 2012-7559 Filed 3-29-12; 8:45 am]
BILLING CODE 5001-06-P