Defense Federal Acquisition Regulation Supplement; Contractor Performance of Acquisition Functions Closely Associated With Inherently Governmental Functions, 14100-14101 [06-2643]
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14100
Federal Register / Vol. 71, No. 54 / Tuesday, March 21, 2006 / Rules and Regulations
b. In paragraph (d), by removing
‘‘225.7401’’ and adding in its place ‘‘PGI
225.7403–1’’.
I
PART 203—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
2. Section 203.570–1 is revised to read
as follows:
I
203.570–1
Scope.
[FR Doc. 06–2639 Filed 3–20–06; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
This subpart implements 10 U.S.C.
2408. For information on 10 U.S.C.
2408, see PGI 203.570–1.
Defense Acquisition Regulations
System
PART 207—ACQUISITION PLANNING
48 CFR Part 207
3. Section 207.105 is amended by
adding paragraph (b)(19)(F) to read as
follows:
[DFARS Case 2004–D021]
I
207.105
plans.
Contents of written acquisition
*
*
*
*
*
(b) * * *
(19) * * *
(F) CONUS Antiterrorism
Considerations. Follow the procedures
at PGI 207.105(b)(19)(F) for
consideration of antiterrorism measures
in acquisition planning.
PART 209—CONTRACTOR
QUALIFICATIONS
4. Section 209.105–1 is added to read
as follows:
I
209.105–1
Obtaining information.
For guidance on using the Excluded
Parties List System, see PGI 209.105–1.
PART 229—TAXES
5. Section 229.101 is amended by
revising paragraph (a) and adding
paragraph (b) to read as follows:
I
229.101
Resolving tax problems.
(a) Within DoD, the agency-designated
legal counsels are the defense agency
General Counsels, the General Counsels
of the Navy and Air Force, and for the
Army, the Chief, Contract Law Division,
Office of the Judge Advocate General.
For additional information on the
designated legal counsels, see PGI
229.101(a).
(b) For information on fuel excise
taxes, see PGI 229.101(b).
cprice-sewell on PROD1PC66 with RULES
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.225–7043
[Amended]
6. Section 252.225–7043 is amended
as follows:
I a. By revising the clause date to read
‘‘(Mar 2006)’’; and
I
VerDate Aug<31>2005
15:05 Mar 20, 2006
Jkt 208001
Defense Federal Acquisition
Regulation Supplement; Contractor
Performance of Acquisition Functions
Closely Associated With Inherently
Governmental Functions
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
SUMMARY: DoD has adopted as final,
with changes, an interim rule amending
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement Section 804 of the National
Defense Authorization Act for Fiscal
Year 2005. Section 804 places
limitations on the award of contracts for
the performance of acquisition functions
closely associated with inherently
governmental functions.
DATES: Effective March 21, 2006.
FOR FURTHER INFORMATION CONTACT: Ms.
Robin Schulze, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3C132, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0326,
facsimile (703) 602–0350. Please cite
DFARS Case 2004–D021.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 70
FR 14572 on March 23, 2005, to
implement Section 804 of the National
Defense Authorization Act for Fiscal
Year 2005. Section 804 places
limitations on the award of contracts for
the performance of acquisition functions
closely associated with inherently
governmental functions.
Three sources submitted comments
on the interim rule. A discussion of the
comments is provided below.
1. Comment: One respondent
recommended revision of the text at
207.503(S–70)(1) to replace the phrase
‘‘functions closely associated with
inherently governmental functions that
are listed at FAR 7.503(d)’’ with the
phrase ‘‘services and actions that are
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
listed at FAR 7.503(d).’’ Since 10 U.S.C.
2383(b)(3) states that the phrase
‘‘functions closely associated with
inherently governmental functions’’
means those functions described in FAR
7.503(d), use of the FAR reference
would meet the letter of the law and
would avoid introducing a new phrase
in the DFARS.
DoD Response: DoD believes that use
of the phrase ‘‘functions closely
associated with inherently
governmental functions,’’ along with the
reference to FAR 7.503(d), more clearly
describes the requirements of the rule.
Therefore, DoD has made no change to
the rule as a result of this comment.
2. Comment: One respondent
recommended amending the text at
207.503(S–70)(1)(i)(B) to remove the
word ‘‘supervise’’ and replace it with
the phrase ‘‘provide oversight to’’ to
prevent a conflict with Office of Federal
Procurement Policy (OFPP) Policy
Letter 92–1, Inherently Governmental
Functions. The respondent stated that
OFPP Policy Letter 92–1 cautions
against exercising ‘‘such control over
contractor activities to convert the
contract * * * to a personal services
contract,’’ and that use of the word
‘‘supervise,’’ could be understood by
Federal officials that they are to interact
with contractor employees in the same
way they supervise Federal employees.
DoD Response: It should be noted that
OMB Circular No. A–76 dated May 29,
2003, supersedes OFPP Policy Letter
92–1. However, DoD agrees that the
term ‘‘supervise’’ could be subject to
differing interpretations and could lead
to an inappropriate contract
relationship. Therefore, DoD has
amended the rule to replace the term
‘‘supervise’’ with the term ‘‘oversee.’’
3. Comment: One respondent stated
that, given the importance of this issue,
DoD should provide further guidance
concerning the circumstances under
which contracting officers may make a
determination under 207.503(S–
70)(1)(i)(A), that appropriate DoD
personnel cannot reasonably be made
available to perform the functions.
DoD Response: DoD does not believe
that additional guidance is necessary.
The availability decision must be made
on a case-by-case basis, and DoD
contracting officers should retain the
flexibility to make informed decisions to
meet mission needs.
4. Comment: One respondent
expressed support for the rule, since the
rule places some controls on the award
of contracts for the performance of jobs
closely associated with the Federal
Government’s purchases of goods and
services. The respondent believes that
the Government should protect
E:\FR\FM\21MRR1.SGM
21MRR1
Federal Register / Vol. 71, No. 54 / Tuesday, March 21, 2006 / Rules and Regulations
inherently governmental functions, and
recommended that DoD require
contracting officers to provide written
justifications of decisions made under
this DFARS rule and that those
justifications be made publicly available
on the World Wide Web.
DoD Response: In accordance with
FAR Subpart 4.8, the Government
contract file should document the basis
for an acquisition and the relevant
decisions made by the contracting
officer. DoD does not believe it is
necessary to post the determinations
made in accordance with this rule on
the World Wide Web.
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 has prepared a final regulatory
flexibility analysis consistent with 5
U.S.C. 604. A copy of the analysis may
be obtained from the point of contact
specified herein. The analysis is
summarized as follows:
The objective of the rule is to ensure
proper management and oversight of
contracts for functions that generally are
not considered to be inherently
governmental, but may approach being
in that category because of the nature of
the function, the manner in which the
contractor performs the contract, or the
manner in which the Government
administers contractor performance.
The impact of the rule on small entities
is unknown at this time. DoD agencies
will implement the requirements of the
rule in making decisions whether to
enter into, and in the administration of,
contracts for performance of the
acquisition functions closely associated
with inherently governmental functions
that are listed in section 7.503(d) of the
Federal Acquisition Regulation. DoD
received no comments on the initial
regulatory flexibility analysis. As a
result of comments received on the
interim rule, the final rule contains a
minor change to clarify that Government
personnel ‘‘oversee’’ but do not
‘‘supervise’’ contractor personnel.
cprice-sewell on PROD1PC66 with RULES
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.
VerDate Aug<31>2005
15:05 Mar 20, 2006
Jkt 208001
List of Subjects in 48 CFR Part 207
Government procurement.
Accordingly, the interim rule
amending 48 CFR part 207, which was
published at 70 FR 14572 on March 23,
2005, is adopted as a final rule with the
following change:
I
PART 207—ACQUISITION PLANNING
1. The authority citation for 48 CFR
part 207 continues to read as follows:
I
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
[Amended]
2. Section 207.503 is amended in
paragraph (S–70)(1)(i)(B) by removing
‘‘supervise’’ and adding in its place
‘‘oversee’’.
I
[FR Doc. 06–2643 Filed 3–20–06; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 207 and Appendix D to
Chapter 2
[DFARS Case 2003–D071]
Defense Federal Acquisition
Regulation Supplement; Component
Breakout
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to remove procedures for
breaking out components of end items
for future acquisitions. These
procedures have been relocated to the
new DFARS companion resource,
Procedures, Guidance, and Information.
This final rule is a result of a
transformation initiative undertaken by
DoD to dramatically change the purpose
and content of the DFARS.
DATES: Effective Date: March 21, 2006.
FOR FURTHER INFORMATION CONTACT: Mr.
Euclides Barrera, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3C132, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0296;
facsimile (703) 602–0350. Please cite
DFARS Case 2003–D071.
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
SUPPLEMENTARY INFORMATION:
A. Background
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
207.503
14101
DFARS Transformation is a major
DoD initiative to dramatically change
the purpose and content of the DFARS.
The objective is to improve the
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/dars/
dfars/transformation/index.htm.
This final rule is a result of the
DFARS Transformation initiative. The
rule removes DFARS Appendix D,
which contains DoD policy and
procedures for breakout of components
of end items for future acquisitions. The
portions of Appendix D containing DoD
policy on component breakout have
been relocated to a new section at
DFARS 207.171. The portions of
Appendix D containing internal DoD
procedures for component breakout
have been relocated to the new DFARS
companion resource, Procedures,
Guidance, and Information (PGI),
available at https://www.acq.osd.mil/
dpap/dars/pgi.
DoD published a proposed rule at 70
FR 14623 on March 23, 2005. One
industry association submitted
comments on the proposed rule. A
discussion of the comments is provided
below.
1. Comment: Relocation of component
breakout requirements to a guidance
document is not appropriate, because it
would provide DoD with the option to
unilaterally eliminate the breakout
requirement in its entirety, without
affording the public an opportunity to
object.
DoD Response: Although PGI is more
than a guidance document, DoD agrees
that portions of Appendix D are more
appropriate for retention in the DFARS.
Therefore, the portions of Appendix D
containing DoD policy for component
breakout have been relocated to a new
section at DFARS 207.171. The portions
of Appendix D that have been relocated
to PGI are limited to internal DoD
procedures for conducting breakout
reviews, documenting breakout
decisions, and maintaining breakout
records. These procedures are still
E:\FR\FM\21MRR1.SGM
21MRR1
]]>Agencies
[Federal Register Volume 71, Number 54 (Tuesday, March 21, 2006)]
[Rules and Regulations]
[Pages 14100-14101]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2643]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 207
[DFARS Case 2004-D021]
Defense Federal Acquisition Regulation Supplement; Contractor
Performance of Acquisition Functions Closely Associated With Inherently
Governmental Functions
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD has adopted as final, with changes, an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement Section 804 of the National Defense Authorization Act for
Fiscal Year 2005. Section 804 places limitations on the award of
contracts for the performance of acquisition functions closely
associated with inherently governmental functions.
DATES: Effective March 21, 2006.
FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326,
facsimile (703) 602-0350. Please cite DFARS Case 2004-D021.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 70 FR 14572 on March 23, 2005, to
implement Section 804 of the National Defense Authorization Act for
Fiscal Year 2005. Section 804 places limitations on the award of
contracts for the performance of acquisition functions closely
associated with inherently governmental functions.
Three sources submitted comments on the interim rule. A discussion
of the comments is provided below.
1. Comment: One respondent recommended revision of the text at
207.503(S-70)(1) to replace the phrase ``functions closely associated
with inherently governmental functions that are listed at FAR
7.503(d)'' with the phrase ``services and actions that are listed at
FAR 7.503(d).'' Since 10 U.S.C. 2383(b)(3) states that the phrase
``functions closely associated with inherently governmental functions''
means those functions described in FAR 7.503(d), use of the FAR
reference would meet the letter of the law and would avoid introducing
a new phrase in the DFARS.
DoD Response: DoD believes that use of the phrase ``functions
closely associated with inherently governmental functions,'' along with
the reference to FAR 7.503(d), more clearly describes the requirements
of the rule. Therefore, DoD has made no change to the rule as a result
of this comment.
2. Comment: One respondent recommended amending the text at
207.503(S-70)(1)(i)(B) to remove the word ``supervise'' and replace it
with the phrase ``provide oversight to'' to prevent a conflict with
Office of Federal Procurement Policy (OFPP) Policy Letter 92-1,
Inherently Governmental Functions. The respondent stated that OFPP
Policy Letter 92-1 cautions against exercising ``such control over
contractor activities to convert the contract * * * to a personal
services contract,'' and that use of the word ``supervise,'' could be
understood by Federal officials that they are to interact with
contractor employees in the same way they supervise Federal employees.
DoD Response: It should be noted that OMB Circular No. A-76 dated
May 29, 2003, supersedes OFPP Policy Letter 92-1. However, DoD agrees
that the term ``supervise'' could be subject to differing
interpretations and could lead to an inappropriate contract
relationship. Therefore, DoD has amended the rule to replace the term
``supervise'' with the term ``oversee.''
3. Comment: One respondent stated that, given the importance of
this issue, DoD should provide further guidance concerning the
circumstances under which contracting officers may make a determination
under 207.503(S-70)(1)(i)(A), that appropriate DoD personnel cannot
reasonably be made available to perform the functions.
DoD Response: DoD does not believe that additional guidance is
necessary. The availability decision must be made on a case-by-case
basis, and DoD contracting officers should retain the flexibility to
make informed decisions to meet mission needs.
4. Comment: One respondent expressed support for the rule, since
the rule places some controls on the award of contracts for the
performance of jobs closely associated with the Federal Government's
purchases of goods and services. The respondent believes that the
Government should protect
[[Page 14101]]
inherently governmental functions, and recommended that DoD require
contracting officers to provide written justifications of decisions
made under this DFARS rule and that those justifications be made
publicly available on the World Wide Web.
DoD Response: In accordance with FAR Subpart 4.8, the Government
contract file should document the basis for an acquisition and the
relevant decisions made by the contracting officer. DoD does not
believe it is necessary to post the determinations made in accordance
with this rule on the World Wide Web.
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 has prepared a final regulatory flexibility analysis consistent
with 5 U.S.C. 604. A copy of the analysis may be obtained from the
point of contact specified herein. The analysis is summarized as
follows:
The objective of the rule is to ensure proper management and
oversight of contracts for functions that generally are not considered
to be inherently governmental, but may approach being in that category
because of the nature of the function, the manner in which the
contractor performs the contract, or the manner in which the Government
administers contractor performance. The impact of the rule on small
entities is unknown at this time. DoD agencies will implement the
requirements of the rule in making decisions whether to enter into, and
in the administration of, contracts for performance of the acquisition
functions closely associated with inherently governmental functions
that are listed in section 7.503(d) of the Federal Acquisition
Regulation. DoD received no comments on the initial regulatory
flexibility analysis. As a result of comments received on the interim
rule, the final rule contains a minor change to clarify that Government
personnel ``oversee'' but do not ``supervise'' contractor personnel.
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 207
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Accordingly, the interim rule amending 48 CFR part 207, which was
published at 70 FR 14572 on March 23, 2005, is adopted as a final rule
with the following change:
PART 207--ACQUISITION PLANNING
0
1. The authority citation for 48 CFR part 207 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
207.503 [Amended]
0
2. Section 207.503 is amended in paragraph (S-70)(1)(i)(B) by removing
``supervise'' and adding in its place ``oversee''.
[FR Doc. 06-2643 Filed 3-20-06; 8:45 am]
BILLING CODE 5001-08-P
