Defense Federal Acquisition Regulation Supplement; Foreign Acquisition, 14625-14628 [05-5625]
Download as PDF
<![CDATA[
Federal Register / Vol. 70, No. 55 / Wednesday, March 23, 2005 / Proposed Rules
preparation of source selection plans
and examples of source selection
evaluation factors. This text will be
relocated to the new DFARS companion
resource, Procedures, Guidance, and
Information (PGI), available at https://
www.acq.osd.mil/dpap/dars/pgi.
• Update references to the clauses at
FAR 52.219–8 and 52.219–9, to reflect
the current clause titles.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this 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 the rule makes no significant
change to DoD contracting policy.
Therefore, DoD has not performed an
initial regulatory flexibility analysis.
DoD invites comments from small
businesses and other interested parties.
DoD also will consider comments from
small entities concerning the affected
DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be
submitted separately and should cite
DFARS Case 2003–D077.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 215
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, DoD proposes to amend 48
CFR part 215 as follows:
1. The authority citation for 48 CFR
part 215 continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
[Removed]
2. Section 215.000 is removed.
Subpart 215.2—[Removed]
3. Subpart 215.2 is removed.
4. Sections 215.303 through 215.305
are revised to read as follows:
215.303
Responsibilities.
(b)(2) For high-dollar value and other
acquisitions, as prescribed by agency
VerDate jul<14>2003
17:16 Mar 22, 2005
Jkt 205001
215.304 Evaluation factors and significant
subfactors.
(c)(i) In acquisitions that require use
of the clause at FAR 52.219–9, Small
Business Subcontracting Plan, other
than those based on the lowest price
technically acceptable source selection
process (see FAR 15.101–2), the extent
of participation of small businesses and
historically black colleges or
universities and minority institutions in
performance of the contract shall be
addressed in source selection. The
contracting officer shall evaluate the
extent to which offerors identify and
commit to small business and
historically black college or university
and minority institution performance of
the contract, whether as a joint venture,
teaming arrangement, or subcontractor.
(A) See PGI 215.304(c)(i)(A) for
examples of evaluation factors.
(B) Proposals addressing the extent of
small business and historically black
college or university and minority
institution performance may be separate
from subcontracting plans submitted
pursuant to the clause at FAR 52.219–
9 and should be structured to allow for
consideration of offers from small
businesses.
(C) When an evaluation assesses the
extent that small businesses and
historically black colleges or
universities and minority institutions
are specifically identified in proposals,
the small businesses and historically
black colleges or universities and
minority institutions considered in the
evaluation shall be listed in any
subcontracting plan submitted pursuant
to FAR 52.219–9 to facilitate
compliance with 252.219–7003(g).
215.305
PART 215—CONTRACTING BY
NEGOTIATION
215.000
procedures, the source selection
authority shall approve a source
selection plan before the solicitation is
issued. Follow the procedures at PGI
215.303(b)(2) for preparation of the
source selection plan.
Proposal evaluation.
(a)(2) Past performance evaluation.
When a past performance evaluation is
required by FAR 15.304, and the
solicitation includes the clause at FAR
52.219–8, Utilization of Small Business
Concerns, the evaluation factors shall
include the past performance of offerors
in complying with requirements of that
clause. When a past performance
evaluation is required by FAR 15.304,
and the solicitation includes the clause
at FAR 52.219–9, Small Business
Subcontracting Plan, the evaluation
factors shall include the past
PO 00000
Frm 00048
Fmt 4702
Sfmt 4702
14625
performance of offerors in complying
with requirements of that clause.
[FR Doc. 05–5628 Filed 3–22–05; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2003–D008]
Defense Federal Acquisition
Regulation Supplement; Foreign
Acquisition
Department of Defense (DoD).
Proposed rule with request for
comments.
AGENCY:
ACTION:
SUMMARY: DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
update text pertaining to the acquisition
of supplies and services from foreign
sources. This proposed rule is a result
of a transformation initiative undertaken
by DoD to dramatically change the
purpose and content of the DFARS.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before May
23, 2005, to be considered in the
formation of the final rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2003–D008,
using any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Defense Acquisition Regulations
Web Site: https://emissary.acq.osd.mil/
dar/dfars.nsf/pubcomm. Follow the
instructions for submitting comments.
• E-mail: dfars@osd.mil. Include
DFARS Case 2003–D008 in the subject
line of the message.
• Fax: (703) 602–0350.
• Mail: Defense Acquisition
Regulations Council, Attn: Ms. Amy
Williams, OUSD(AT&L)DPAP(DAR),
IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301–3062.
• Hand Delivery/Courier: Defense
Acquisition Regulations Council,
Crystal Square 4, Suite 200A, 241 18th
Street, Arlington, VA 22202–3402.
All comments received will be posted
to https://emissary.acq.osd.mil/dar/
dfars.nsf.
FOR FURTHER INFORMATION CONTACT:
Ms.
Amy Williams, (703) 602–0328.
SUPPLEMENTARY INFORMATION:
A. Background
DFARS Transformation is a major
DoD initiative to dramatically change
the purpose and content of the DFARS.
The objective is to improve the
E:\FR\FM\23MRP1.SGM
23MRP1
14626
Federal Register / Vol. 70, No. 55 / Wednesday, March 23, 2005 / Proposed Rules
efficiency and effectiveness of the
acquisition process, while allowing the
acquisition workforce the flexibility to
innovate. The transformed DFARS will
contain only requirements of law, DoDwide policies, delegations of FAR
authorities, deviations from FAR
requirements, and policies/procedures
that have a significant effect beyond the
internal operating procedures of DoD or
a significant cost or administrative
impact on contractors or offerors.
Additional information on the DFARS
Transformation initiative is available at
https://www.acq.osd.mil/dpap/dfars/
transf.htm.
This proposed rule is a result of the
DFARS Transformation Initiative. The
proposed changes include—
• Deletion of redundant or
unnecessary text at DFARS 225.000,
225.171, 225.871–1(b), 225.7301(a)(1)
through (3), and 225.7306.
• Deletion of text at DFARS 225.001,
225.504, 225.802, 225.870–1(d),
225.870–5, 225.870–7, 225.871–5,
225.872–4, 225.872–5(b) and (c),
225.872–6(c), 225.873–2, 225.902,
225.903, 225.7301(c) and (d), and
225.7302 containing internal DoD
procedures, guidance, or information.
This text will be relocated to the new
DFARS companion resource,
Procedures, Guidance, and Information
(PGI), available at https://
www.acq.osd.mil/dpap/dars/pgi.
• Clarification of DFARS text as
follows:
• 225.401–70—Addition of a
statutory reference.
• 225.408—Clarification that the
exception from FAR 25.408(a)(4) for
overseas acquisitions applies only to the
requirement for submission of offers in
U.S. dollars.
• 225.701—Expansion of crossreference to restrictions on contracting
with firms owned or controlled by
foreign governments that support
terrorism (from 209.104–1(g)(i) to
209.104–1(g)).
• 225.802–70—Addition of a
reference to the Army in Europe
Regulation 715–9, for procedures for
work performed in Germany.
• 225.871–6—Clarification that
property that is jointly acquired by the
members of a NATO cooperative project
may be disposed of in accordance with
the terms of the cooperative project
agreement, without regard to any laws
of the United States applicable to the
disposal of property owned by the
United States.
• 225.7003—Clarification that the
waiver procedures in 225.7003 apply
only if specifically authorized by
reference elsewhere in subpart 225.70.
VerDate jul<14>2003
16:19 Mar 22, 2005
Jkt 205001
• 225.7303–2(a)(3) and 225.7307—
Addition of cross-references.
• 225.7501(a)(2)(iii)—Deletion of a
reference to DoD Directive, 4120.3,
Defense Standardization and
Specification Program, which was
cancelled in 1991.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
225.401–70 Products subject to trade
agreements.
B. Regulatory Flexibility Act
DoD does not expect this 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 the rule makes no significant
change to DoD contracting policy.
Therefore, DoD has not performed an
initial regulatory flexibility analysis.
DoD invites comments from small
businesses and other interested parties.
DoD also will consider comments from
small entities concerning the affected
DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be
submitted separately and should cite
DFARS Case 2003-D008.
(a)(4) The requirements of FAR
25.408(a)(4), on submission of offers in
U.S. dollars, do not apply to overseas
acquisitions or to Defense Energy
Support Center post, camp, or station
overseas requirements.
7. Section 225.504 is revised to read
as follows:
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 225 and
252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, DoD proposes to amend 48
CFR parts 225 and 252 as follows:
1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 225—FOREIGN ACQUISITION
225.000
[Removed]
2. Section 225.000 is removed.
3. Section 225.001 is revised to read
as follows:
225.001
General.
[Removed]
4. Section 225.171 is removed.
5. Section 225.401–70 is amended in
the introductory text by revising the last
sentence to read as follows:
PO 00000
Frm 00049
Fmt 4702
225.408
225.504
Procedures.
Evaluation examples.
For examples that illustrate the
evaluation procedures in 225.502(c)(ii),
see PGI 225.504.
8. Section 225.701 is revised to read
as follows:
225.701
Restrictions.
See 209.104–1(g) for restrictions on
contracting with firms owned or
controlled by foreign governments.
9. Section 225.802 is revised to read
as follows:
225.802
Procedures.
(b) Information on memoranda of
understanding and other international
agreements is available at PGI
225.802(b).
10. Section 225.802–70 is amended by
adding paragraph (c) to read as follows:
225.802–70 Contracts for performance
outside the United States and Canada.
*
*
*
*
*
(c) For work performed in Germany,
eligibility for logistics support and base
privileges of contractor employees is
governed by U.S.-German bilateral
agreements. Follow the procedures in
Army in Europe Regulation 715–9,
available at https://
www.chrma.hqusareur.army.mil/
docper.
11. Section 225.870–1 is amended by
revising paragraph (d) and removing
paragraph (e). The revised text reads as
follows:
225.870–1
General.
*
For guidance on evaluating offers of
foreign end products, see PGI 225.001.
225.171
* * * However, 225.003 expands the
definition of Caribbean Basin country
end products to include petroleum and
any product derived from petroleum, in
accordance with Section 8094 of Public
Law 103–139.
6. Section 225.408 is revised to read
as follows:
Sfmt 4702
*
*
*
*
(d) For additional information on
production rights, data, and
information; services provided by
Canadian Commercial Corporation;
audit; and inspection, see PGI 225.870–
1(d).
12. Section 225.870–5 is revised to
read as follows:
E:\FR\FM\23MRP1.SGM
23MRP1
Federal Register / Vol. 70, No. 55 / Wednesday, March 23, 2005 / Proposed Rules
225.870–5
Contract administration.
225.872–5
Follow the contract administration
procedures at PGI 225.870–5.
13. Section 225.870–7 is revised to
read as follows:
225.870–7
supplies.
Acceptance of Canadian
For information on the acceptance of
Canadian supplies, see PGI 225.870–7.
14. Section 225.871 is revised to read
as follows:
225.871 North Atlantic Treaty Organization
(NATO) cooperative projects.
15. Section 225.871–1 is revised to
read as follows:
225.871–1
Scope.
This section implements 22 U.S.C.
2767 and 10 U.S.C. 2350b.
16. Section 225.871–5 is amended by
revising paragraph (b) and removing
paragraph (c). The revised text reads as
follows:
225.871–5
Directed subcontracting.
*
*
*
*
*
(b) In some instances, it may not be
feasible to name specific subcontractors
at the time the agreement is concluded.
However, the agreement shall clearly
state the general provisions for work
sharing at the prime and subcontract
level. For additional information on
cooperative project agreements, see PGI
225.871–5.
17. Section 225.871–6 is revised to
read as follows:
225.871–6
Disposal of property.
Dispose of property that is jointly
acquired by the members of a
cooperative project under the
procedures established in the agreement
or in a manner consistent with the terms
of the agreement, without regard to any
laws of the United States applicable to
the disposal of property owned by the
United States.
18. Section 225.872–4 is revised to
read as follows:
225.872–4
Individual determinations.
If the offer of an end product from a
qualifying country source listed in
225.872–1(b), as evaluated, is low or
otherwise eligible for award, prepare a
determination and findings exempting
the acquisition from the Buy American
Act and the Balance of Payments
Program as inconsistent with the public
interest, unless another exception such
as the Trade Agreements Act applies.
Follow the procedures at PGI 225.872–
4.
19. Section 225.872–5 is amended by
revising paragraphs (b) and (c) and by
removing paragraph (d). The revised
text reads as follows:
VerDate jul<14>2003
16:19 Mar 22, 2005
Jkt 205001
Contract administration.
*
*
*
*
*
(b) Follow the contract administration
procedures at PGI 225.872–5(b).
(c) Information on quality assurance
delegations to foreign governments is in
subpart 246.4, Government Contract
Quality Assurance.
20. Section 225.872–6 is amended by
revising paragraph (c) to read as follows:
225.872–6
Audit.
*
*
*
*
*
(c) Handle requests for audits in
qualifying countries in accordance with
215.404–2(c), but follow the additional
procedures at PGI 225.872–6(c).
21. Section 225.873–2 is revised to
read as follows:
225.873–2
Procedures.
When an offeror or a contractor
identifies a levy included in an offered
or contract price, follow the procedures
at PGI 225.873–2.
22. Sections 225.902 and 225.903 are
revised to read as follows:
225.902
Procedures.
Follow the entry and release
procedures at PGI 225.902.
225.903
225.7003 Waiver of restrictions of 10
U.S.C. 2534.
(a) The waiver procedures of this
section apply only if specifically
authorized by reference elsewhere in
this subpart. The restrictions on certain
foreign purchases under 10 U.S.C.
2534(a) may be waived as follows:
*
*
*
*
*
24. Sections 225.7301 and 225.7302
are revised to read as follows:
225.7301
225.7302
Frm 00050
Fmt 4702
Sfmt 4702
Guidance.
For guidance on the role of the
contracting officer in FMS programs that
will require an acquisition, see PGI
225.7302.
25. Section 225.7303–2 is amended in
paragraph (a)(3) by revising the
introductory text to read as follows:
225.7303–2 Cost of doing business with a
foreign government or an international
organization.
(a) * * *
(3) Offset costs (also see 225.7307).
*
*
*
*
*
225.7303–4
[Amended]
26. Section 225.7303–4 is amended in
paragraph (b)(1) by revising the last
parenthetical to read ‘‘(see 225.7307(a))’.
225.7306
[Removed]
27. Section 225.7306 is removed.
225.7307 and 225.7308
[Redesignated]
28. Sections 225.7307 and 225.7308
are redesignated as sections 225.7306
and 225.7307, respectively.
29. Newly designated section
225.7306 is revised to read as follows:
225.7306
Offset arrangements.
In accordance with the Presidential
policy statement of April 16, 1990, DoD
does not encourage, enter into, or
commit U.S. firms to FMS offset
arrangements. The decision whether to
engage in offsets, and the responsibility
for negotiating and implementing offset
arrangements, resides with the
companies involved. (Also see
225.7303–2(a)(3)).
30. Section 225.7501 is amended by
revising paragraph (a)(2)(iii) to read as
follows:
225.7501
General.
(a) The U.S. Government sells defense
articles and services to foreign
governments or international
organizations through FMS agreements.
The agreement is documented in a
Letter of Offer and Acceptance (LOA)
(see DoD 5105.38–M, Security
Assistance Management Manual).
(b) Conduct FMS acquisitions under
the same acquisition and contract
PO 00000
management procedures used for other
defense acquisitions.
(c) Follow the additional procedures
at PGI 225.7301(c) for preparation of
solicitations and contracts that include
FMS requirements.
Exempted supplies.
(b)(i) For an explanation of the term
‘‘supplies,’’ see PGI 225.903(b)(i).
(ii) The duty-free certificate shall be
printed, stamped, or typed on the face
of, or attached to, Customs Form 7501.
A duly designated officer or civilian
official of the appropriate department or
agency shall execute the certificate in
the format provided at PGI
225.903(a)(ii).
23. Section 225.7003 is amended in
paragraph (a) by revising the
introductory text to read as follows:
14627
Policy.
*
*
*
*
*
(a) * * *
(2) * * *
(iii) A spare part for foreignmanufactured vehicles, equipment,
machinery, or systems, provided the
acquisition is restricted to the original
manufacturer or its supplier;
*
*
*
*
*
E:\FR\FM\23MRP1.SGM
23MRP1
14628
Federal Register / Vol. 70, No. 55 / Wednesday, March 23, 2005 / Proposed Rules
All comments received will be posted
to https://emissary.acq.osd.mil/dar/
dfars.nsf.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
FOR FURTHER INFORMATION CONTACT:
252.225–7027 and 252.225–7028
[Amended]
Amy Williams, (703) 602–0328.
SUPPLEMENTARY INFORMATION:
31. Sections 252.225–7027 and
252.225–7028 are amended in the
introductory text by removing
‘‘225.7308’’ and adding in its place
‘‘225.7307’’.
[FR Doc. 05–5625 Filed 3–22–05; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2004–D034]
Defense Federal Acquisition
Regulation Supplement; Restrictions
on Totally Enclosed Lifeboat Survival
Systems
Department of Defense (DoD).
Proposed rule with request for
comments.
AGENCY:
ACTION:
SUMMARY: DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
remove text addressing restrictions on
the acquisition of totally enclosed
lifeboat survival systems. The text
proposed for removal is based on fiscal
year 1994 and 1995 appropriations act
provisions that are no longer considered
applicable, or is based on statutory
provisions that apply only to the Navy.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before May
23, 2005, to be considered in the
formation of the final rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2004-D034,
using any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Defense Acquisition Regulations
Web Site: https://emissary.acq.osd.mil/
dar/dfars.nsf/pubcomm. Follow the
instructions for submitting comments.
• E-mail: dfars@osd.mil. Include
DFARS Case 2004-D034 in the subject
line of the message.
• Fax: (703) 602–0350.
• Mail: Defense Acquisition
Regulations Council, Attn: Ms. Amy
Williams, OUSD(AT&L)DPAP(DAR),
IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301–3062.
• Hand Delivery/Courier: Defense
Acquisition Regulations Council,
Crystal Square 4, Suite 200A, 241 18th
Street, Arlington, VA 22202–3402.
VerDate jul<14>2003
16:19 Mar 22, 2005
Jkt 205001
Ms.
A. Background
This proposed rule removes DFARS
225.7008, Restrictions on totally
enclosed lifeboat survival systems, and
the corresponding contract clause at
DFARS 252.225–7039. These
restrictions implement Section 8124 of
the Fiscal Year 1994 DoD
Appropriations Act (Public Law 103–
139), Section 8093 of the Fiscal Year
1995 DoD Appropriations Act (Public
Law 103–335), and 10 U.S.C. 2534. Both
appropriations act provisions state that
none of the funds appropriated in ‘‘this
or any other Act’’ could be used for the
purchase of a totally enclosed lifeboat
and associated davits and winches, if
less than 50 percent of the entire
system’s components are manufactured
in the United States, and if less than 50
percent of the labor in the manufacture
and assembly of the entire system is
performed in the United States.
There is a presumption that any
provision in an annual appropriations
act is effective only for that fiscal year,
unless permanency is clearly indicated
by words of futurity, or the provision is
of a general nature, bearing no relation
to the object of the appropriations. At
the time of implementation of the
restrictions on acquisition of totally
enclosed lifeboat systems in the DFARS,
DoD interpreted the phrase ‘‘this or any
other Act’’ to impart futurity to the
restrictions on acquisition of totally
enclosed lifeboat systems. DoD has
reevaluated this interpretation and has
determined that the appropriations act
provisions upon which the DFARS
coverage is based were not permanent
legislation. This position is supported
by review of case law, including a U.S.
Comptroller General decision of
September 16, 1987, B–228838, in
which the General Accounting Office
held that language such as ‘‘this or any
other Act’’ does not indicate futurity.
10 U.S.C. 2534(a) restricts the
acquisition of totally enclosed lifeboats
that are components of naval vessels.
Since this restriction impacts only the
Navy, and 10 U.S.C. 2534(h) specifies
that DoD may not use contract clauses
or certifications, but must use
management and oversight techniques,
to implement this restriction, DFARS
coverage for implementation of this
restriction is considered unnecessary.
This rule was not subject to Office of
Management and Budget review under
PO 00000
Frm 00051
Fmt 4702
Sfmt 4702
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this 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 the domestic source restrictions
of 10 U.S.C. 2534 still apply to the
acquisition of totally enclosed lifeboats
that are components of naval vessels.
Therefore, DoD has not performed an
initial regulatory flexibility analysis.
DoD invites comments from small
businesses and other interested parties.
DoD also will consider comments from
small entities concerning the affected
DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be
submitted separately and should cite
DFARS Case 2004-D034.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the rule does not
contain any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 225 and
252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, DoD proposes to amend 48
CFR Parts 225 and 252 as follows:
1. The authority citation for 48 CFR
Parts 225 and 252 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 225—FOREIGN ACQUISITION
§ § 225.7008 through 225.7008–4
[Removed and Reserved]
2. Sections 225.7008 through
225.7008–4 are removed and reserved.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
§ 252.225–7039
[Removed and Reserved]
3. Section 252.225–7039 is removed
and reserved.
[FR Doc. 05–5632 Filed 3–22–05; 8:45 am]
BILLING CODE 5001–08–P
E:\FR\FM\23MRP1.SGM
23MRP1
]]>Agencies
[Federal Register Volume 70, Number 55 (Wednesday, March 23, 2005)]
[Proposed Rules]
[Pages 14625-14628]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5625]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2003-D008]
Defense Federal Acquisition Regulation Supplement; Foreign
Acquisition
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to update text pertaining to the
acquisition of supplies and services from foreign sources. This
proposed rule is a result of a transformation initiative undertaken by
DoD to dramatically change the purpose and content of the DFARS.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before May 23, 2005, to be considered in
the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2003-D008,
using any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Defense Acquisition Regulations Web Site: https://
emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for
submitting comments.
E-mail: dfars@osd.mil. Include DFARS Case 2003-D008 in the
subject line of the message.
Fax: (703) 602-0350.
Mail: Defense Acquisition Regulations Council, Attn: Ms.
Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
Hand Delivery/Courier: Defense Acquisition Regulations
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
All comments received will be posted to https://
emissary.acq.osd.mil/dar/dfars.nsf.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
DFARS Transformation is a major DoD initiative to dramatically
change the purpose and content of the DFARS. The objective is to
improve the
[[Page 14626]]
efficiency and effectiveness of the acquisition process, while allowing
the acquisition workforce the flexibility to innovate. The transformed
DFARS will contain only requirements of law, DoD-wide policies,
delegations of FAR authorities, deviations from FAR requirements, and
policies/procedures that have a significant effect beyond the internal
operating procedures of DoD or a significant cost or administrative
impact on contractors or offerors. Additional information on the DFARS
Transformation initiative is available at https://www.acq.osd.mil/dpap/
dfars/transf.htm.
This proposed rule is a result of the DFARS Transformation
Initiative. The proposed changes include--
Deletion of redundant or unnecessary text at DFARS
225.000, 225.171, 225.871-1(b), 225.7301(a)(1) through (3), and
225.7306.
Deletion of text at DFARS 225.001, 225.504, 225.802,
225.870-1(d), 225.870-5, 225.870-7, 225.871-5, 225.872-4, 225.872-5(b)
and (c), 225.872-6(c), 225.873-2, 225.902, 225.903, 225.7301(c) and
(d), and 225.7302 containing internal DoD procedures, guidance, or
information. This text will be relocated to the new DFARS companion
resource, Procedures, Guidance, and Information (PGI), available at
https://www.acq.osd.mil/dpap/dars/pgi.
Clarification of DFARS text as follows:
225.401-70--Addition of a statutory reference.
225.408--Clarification that the exception from FAR
25.408(a)(4) for overseas acquisitions applies only to the requirement
for submission of offers in U.S. dollars.
225.701--Expansion of cross-reference to restrictions on
contracting with firms owned or controlled by foreign governments that
support terrorism (from 209.104-1(g)(i) to 209.104-1(g)).
225.802-70--Addition of a reference to the Army in Europe
Regulation 715-9, for procedures for work performed in Germany.
225.871-6--Clarification that property that is jointly
acquired by the members of a NATO cooperative project may be disposed
of in accordance with the terms of the cooperative project agreement,
without regard to any laws of the United States applicable to the
disposal of property owned by the United States.
225.7003--Clarification that the waiver procedures in
225.7003 apply only if specifically authorized by reference elsewhere
in subpart 225.70.
225.7303-2(a)(3) and 225.7307--Addition of cross-
references.
225.7501(a)(2)(iii)--Deletion of a reference to DoD
Directive, 4120.3, Defense Standardization and Specification Program,
which was cancelled in 1991.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this 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 the rule
makes no significant change to DoD contracting policy. Therefore, DoD
has not performed an initial regulatory flexibility analysis. DoD
invites comments from small businesses and other interested parties.
DoD also will consider comments from small entities concerning the
affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments
should be submitted separately and should cite DFARS Case 2003-D008.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR parts 225 and 252 as
follows:
1. The authority citation for 48 CFR parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
225.000 [Removed]
2. Section 225.000 is removed.
3. Section 225.001 is revised to read as follows:
225.001 General.
For guidance on evaluating offers of foreign end products, see PGI
225.001.
225.171 [Removed]
4. Section 225.171 is removed.
5. Section 225.401-70 is amended in the introductory text by
revising the last sentence to read as follows:
225.401-70 Products subject to trade agreements.
* * * However, 225.003 expands the definition of Caribbean Basin
country end products to include petroleum and any product derived from
petroleum, in accordance with Section 8094 of Public Law 103-139.
6. Section 225.408 is revised to read as follows:
225.408 Procedures.
(a)(4) The requirements of FAR 25.408(a)(4), on submission of
offers in U.S. dollars, do not apply to overseas acquisitions or to
Defense Energy Support Center post, camp, or station overseas
requirements.
7. Section 225.504 is revised to read as follows:
225.504 Evaluation examples.
For examples that illustrate the evaluation procedures in
225.502(c)(ii), see PGI 225.504.
8. Section 225.701 is revised to read as follows:
225.701 Restrictions.
See 209.104-1(g) for restrictions on contracting with firms owned
or controlled by foreign governments.
9. Section 225.802 is revised to read as follows:
225.802 Procedures.
(b) Information on memoranda of understanding and other
international agreements is available at PGI 225.802(b).
10. Section 225.802-70 is amended by adding paragraph (c) to read
as follows:
225.802-70 Contracts for performance outside the United States and
Canada.
* * * * *
(c) For work performed in Germany, eligibility for logistics
support and base privileges of contractor employees is governed by
U.S.-German bilateral agreements. Follow the procedures in Army in
Europe Regulation 715-9, available at https://
www.chrma.hqusareur.army.mil/docper.
11. Section 225.870-1 is amended by revising paragraph (d) and
removing paragraph (e). The revised text reads as follows:
225.870-1 General.
* * * * *
(d) For additional information on production rights, data, and
information; services provided by Canadian Commercial Corporation;
audit; and inspection, see PGI 225.870-1(d).
12. Section 225.870-5 is revised to read as follows:
[[Page 14627]]
225.870-5 Contract administration.
Follow the contract administration procedures at PGI 225.870-5.
13. Section 225.870-7 is revised to read as follows:
225.870-7 Acceptance of Canadian supplies.
For information on the acceptance of Canadian supplies, see PGI
225.870-7.
14. Section 225.871 is revised to read as follows:
225.871 North Atlantic Treaty Organization (NATO) cooperative
projects.
15. Section 225.871-1 is revised to read as follows:
225.871-1 Scope.
This section implements 22 U.S.C. 2767 and 10 U.S.C. 2350b.
16. Section 225.871-5 is amended by revising paragraph (b) and
removing paragraph (c). The revised text reads as follows:
225.871-5 Directed subcontracting.
* * * * *
(b) In some instances, it may not be feasible to name specific
subcontractors at the time the agreement is concluded. However, the
agreement shall clearly state the general provisions for work sharing
at the prime and subcontract level. For additional information on
cooperative project agreements, see PGI 225.871-5.
17. Section 225.871-6 is revised to read as follows:
225.871-6 Disposal of property.
Dispose of property that is jointly acquired by the members of a
cooperative project under the procedures established in the agreement
or in a manner consistent with the terms of the agreement, without
regard to any laws of the United States applicable to the disposal of
property owned by the United States.
18. Section 225.872-4 is revised to read as follows:
225.872-4 Individual determinations.
If the offer of an end product from a qualifying country source
listed in 225.872-1(b), as evaluated, is low or otherwise eligible for
award, prepare a determination and findings exempting the acquisition
from the Buy American Act and the Balance of Payments Program as
inconsistent with the public interest, unless another exception such as
the Trade Agreements Act applies. Follow the procedures at PGI 225.872-
4.
19. Section 225.872-5 is amended by revising paragraphs (b) and (c)
and by removing paragraph (d). The revised text reads as follows:
225.872-5 Contract administration.
* * * * *
(b) Follow the contract administration procedures at PGI 225.872-
5(b).
(c) Information on quality assurance delegations to foreign
governments is in subpart 246.4, Government Contract Quality Assurance.
20. Section 225.872-6 is amended by revising paragraph (c) to read
as follows:
225.872-6 Audit.
* * * * *
(c) Handle requests for audits in qualifying countries in
accordance with 215.404-2(c), but follow the additional procedures at
PGI 225.872-6(c).
21. Section 225.873-2 is revised to read as follows:
225.873-2 Procedures.
When an offeror or a contractor identifies a levy included in an
offered or contract price, follow the procedures at PGI 225.873-2.
22. Sections 225.902 and 225.903 are revised to read as follows:
225.902 Procedures.
Follow the entry and release procedures at PGI 225.902.
225.903 Exempted supplies.
(b)(i) For an explanation of the term ``supplies,'' see PGI
225.903(b)(i).
(ii) The duty-free certificate shall be printed, stamped, or typed
on the face of, or attached to, Customs Form 7501. A duly designated
officer or civilian official of the appropriate department or agency
shall execute the certificate in the format provided at PGI
225.903(a)(ii).
23. Section 225.7003 is amended in paragraph (a) by revising the
introductory text to read as follows:
225.7003 Waiver of restrictions of 10 U.S.C. 2534.
(a) The waiver procedures of this section apply only if
specifically authorized by reference elsewhere in this subpart. The
restrictions on certain foreign purchases under 10 U.S.C. 2534(a) may
be waived as follows:
* * * * *
24. Sections 225.7301 and 225.7302 are revised to read as follows:
225.7301 General.
(a) The U.S. Government sells defense articles and services to
foreign governments or international organizations through FMS
agreements. The agreement is documented in a Letter of Offer and
Acceptance (LOA) (see DoD 5105.38-M, Security Assistance Management
Manual).
(b) Conduct FMS acquisitions under the same acquisition and
contract management procedures used for other defense acquisitions.
(c) Follow the additional procedures at PGI 225.7301(c) for
preparation of solicitations and contracts that include FMS
requirements.
225.7302 Guidance.
For guidance on the role of the contracting officer in FMS programs
that will require an acquisition, see PGI 225.7302.
25. Section 225.7303-2 is amended in paragraph (a)(3) by revising
the introductory text to read as follows:
225.7303-2 Cost of doing business with a foreign government or an
international organization.
(a) * * *
(3) Offset costs (also see 225.7307).
* * * * *
225.7303-4 [Amended]
26. Section 225.7303-4 is amended in paragraph (b)(1) by revising
the last parenthetical to read ``(see 225.7307(a))'.
225.7306 [Removed]
27. Section 225.7306 is removed.
225.7307 and 225.7308 [Redesignated]
28. Sections 225.7307 and 225.7308 are redesignated as sections
225.7306 and 225.7307, respectively.
29. Newly designated section 225.7306 is revised to read as
follows:
225.7306 Offset arrangements.
In accordance with the Presidential policy statement of April 16,
1990, DoD does not encourage, enter into, or commit U.S. firms to FMS
offset arrangements. The decision whether to engage in offsets, and the
responsibility for negotiating and implementing offset arrangements,
resides with the companies involved. (Also see 225.7303-2(a)(3)).
30. Section 225.7501 is amended by revising paragraph (a)(2)(iii)
to read as follows:
225.7501 Policy.
* * * * *
(a) * * *
(2) * * *
(iii) A spare part for foreign-manufactured vehicles, equipment,
machinery, or systems, provided the acquisition is restricted to the
original manufacturer or its supplier;
* * * * *
[[Page 14628]]
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.225-7027 and 252.225-7028 [Amended]
31. Sections 252.225-7027 and 252.225-7028 are amended in the
introductory text by removing ``225.7308'' and adding in its place
``225.7307''.
[FR Doc. 05-5625 Filed 3-22-05; 8:45 am]
BILLING CODE 5001-08-P
