Defense Federal Acquisition Regulation Supplement; Transition of Weapons-Related Prototype Projects to Follow-On Contracts, 18667-18669 [06-3455]
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Federal Register / Vol. 71, No. 70 / Wednesday, April 12, 2006 / Rules and Regulations
1135 emergency period begins or by July
1 of each year.
(iii) Exemption from the Shared
Rotational Arrangement Requirement.
During the effective period of the
emergency Medicare GME affiliation
agreement, hospitals in the emergency
Medicare GME affiliated group are not
required to participate in a shared
rotational arrangement as defined at
§ 413.75(b).
(iv) Host Hospital Exception from the
Rolling Average for the Period from
August 29, 2005 to June 30, 2006. To
determine the FTE resident count for a
host hospital that is training residents in
excess of its cap, a two step process will
be applied. First, subject to the limit at
paragraph (f)(6)(i)(D) of this section, a
host hospital is to exclude the displaced
FTE residents that are counted by a host
hospital in excess of the hospital’s cap
pursuant to an emergency Medicare
GME affiliation agreement from August
29, 2005, to June 30, 2006, from the
current year’s FTE resident count before
applying the three-year rolling averaging
rules under § 413.75 (d) to calculate the
average FTE resident count. Second, the
displaced FTE residents that are
counted by the host hospital in excess
of the host hospital’s cap pursuant to an
emergency Medicare GME affiliation
agreement from August 29, 2005, to June
30, 2006, are added to the hospital’s 3year rolling average FTE resident count
to determine the host hospital’s FTE
resident count for payment purposes.
*
*
*
*
*
(Catalog of Federal Domestic Assistance
Program No. 93.778, Medical Assistance
Program)
(Catalog of Federal Domestic Assistance
Program No. 93.773, Medicare—Hospital
Insurance; and Program No. 93.774,
Medicare—Supplementary Medical
Insurance Program)
Dated: March 31, 2006.
Mark B. McClellan,
Administrator, Centers for Medicare &
Medicaid Services.
Approved: April 4, 2006.
Michael O. Leavitt,
Secretary.
[FR Doc. 06–3492 Filed 4–7–06; 3 pm]
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BILLING CODE 4120–01–P
FEDERAL COMMUNICATIONS
COMMISSION
Defense Acquisition Regulations
System
[IB Docket No. 04–226; FCC 05–91]
48 CFR Part 212
Mandatory Electronic Filing for
International Telecommunications
Services and Other International
Filings
[DFARS Case 2003–D106]
Federal Communications
Commission.
AGENCY:
Final rule, announcement of
effective date.
ACTION:
SUMMARY: This document announces the
effective date of the rules published in
the Federal Register on July 6, 2005.
The rules eliminate paper filings and
require applicants to file electronically
all applications and other filings related
to international telecommunications
services that can be filed through the
International Bureau Filing System
(IBFS).
The amendments to 47 CFR
63.19(d), 63.21(a), 63.21(h), 63.21(i),
63.25(b), 63.25(c), 63.25(e), 63.53(a)(1),
63.53(a)(2), 63.701 introductory text and
(j); 64.1001(a), 64.1001(f), 64.1002(c)
and 64.1002(e) published at 70 FR
38795, July 6, 2005 are effective April
12, 2006.
DATES:
FOR FURTHER INFORMATION CONTACT:
Peggy Reitzel or JoAnn Ekblad, Policy
Division, International Bureau, (202)
418–1460.
On May
11, 2005 the Commission released a
Report and Order, a summary of which
was published in the Federal Register.
See 70 FR 38795 (July 6, 2005). We
stated that the rules were effective on
August 5, 2005 except for 47 CFR
63.19(d), 63.21(a), 63.21(h), 63.21(i),
63.25(b), 63.25(c), 63.25(e), 63.53(a)(1),
63.53(a)(2), 63.701 introductory text and
(j); 64.1001(a), 64.1001(f), 64.1002(c)
and 64.1002(e) which required approval
by the Office of Management and
Budget (OMB). The information
collection requirements were approved
by OMB. (See OMB Nos. 3060–0357,
3060–0454, 3060–0686, 3060–0944,
3060–1028, 3060–1029.) This
publication satisfies our statement that
the Commission would publish a
document announcing the effective date
of the rules.
SUPPLEMENTARY INFORMATION:
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DEPARTMENT OF DEFENSE
47 CFR Parts 63 and 64
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 06–3506 Filed 4–11–06; 8:45 am]
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Defense Federal Acquisition
Regulation Supplement; Transition of
Weapons-Related Prototype Projects
to Follow-On Contracts
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 847 of the National
Defense Authorization Act for Fiscal
Year 2004. Section 847 authorizes DoD
to carry out a pilot program that permits
the use of streamlined contracting
procedures for the production of items
or processes begun as prototype projects
under other transaction agreements.
DATES: Effective Date: April 12, 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 2003–D106.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 69
FR 63329 on November 1, 2004, to
implement Section 847 of the National
Defense Authorization Act for Fiscal
Year 2004 (Pub. L. 108–136). Section
847 authorizes DoD to carry out a pilot
program for follow-on contracting for
the production of items or processes
begun as prototype projects under other
transaction agreements. Contracts and
subcontracts awarded under the
program may be treated as those for the
acquisition of commercial items; and
items or processes acquired under the
program may be treated as developed in
part with Federal funds and in part at
private expense for purposes of
negotiating rights in technical data.
One association submitted comments
on the interim rule. A discussion of the
comments is provided below.
1. Comment: Definition of
nontraditional defense contractor. The
respondent noted that the definition in
the rule is consistent with the statutory
definition at 10 U.S.C. 2173, but stated
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Federal Register / Vol. 71, No. 70 / Wednesday, April 12, 2006 / Rules and Regulations
that the term ‘‘performed on’’ in
paragraph (2) of the definition could be
interpreted to include commercial
subcontractors that ‘‘performed on’’
traditional defense contractors’ prime
contracts; this would inappropriately
exclude those contractors from the pilot
program. The respondent recommended
revising paragraph (2)(ii) of the
definition to clarify that only contracts
with Federal agencies subject to the
FAR for both prototype projects and
basic, applied, or advanced research
projects will be considered in the
determination of a nontraditional
defense contractor, because the current
language could be interpreted to include
contracts not subject to the FAR.
DoD Response: The definition in the
DFARS rule is consistent with the
definition provided in the statute, and
the terminology referenced by the
respondent (i.e., ‘‘performed on’’) is
identical to terminology used by DoD in
related longstanding policy and
guidance (e.g., DoD’s audit policy for
prototype projects that use other
transaction authority (32 CFR part 3)
and DoD’s Other Transactions Guide for
Prototype Projects). DoD is unaware of
any issues with its interpretation and
believes that revising the definition
could cause unnecessary confusion. If a
contractor has entered into another
transaction agreement and has not, for a
period of at least 1 year prior to the date
of the other transaction agreement, been
a direct party to a contract (prime or
subcontract) that was subject to full cost
accounting standards coverage or one
that exceeded $500,000 to carry out
prototype projects or to perform basic,
applied, or advanced research projects
for a Federal agency that is subject to
the FAR, the contractor qualifies as a
nontraditional defense contractor.
2. Comment: Qualifying subcontracts.
The respondent stated that the interim
rule incorrectly interprets the statute to
mean that both the prime contract and
the subcontract must qualify in order for
the subcontract to be treated as a
subcontract for a commercial item.
DoD Response: The statute does not
require that the prime contract also
qualify; it only requires that the prime
contract be a contract for the prototype
items or processes, which means a
prime contract that includes the
prototype item or process, rather than
one that is only for the prototype items
or processes. DoD has amended the rule
to be consistent with the statute.
3. Comment: Guidance on using fixedprice contracts. The respondent stated
that the use of firm-fixed-price contracts
or fixed-price contracts with economic
price adjustment, as required by the
statute, can be very difficult for the first
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15:11 Apr 11, 2006
Jkt 208001
production contract and recommended
providing high level guidance for (i)
adequately defining performance,
including addressing difficult-toquantify risks expressly; (ii) using
interim fixed-price milestones and
considering allowing later milestones to
be priced during performance as more
knowledge is gained; and (iii) ensuring
that payments, including incentives, are
linked to achieving clearly defined cost
and technical performance objectives.
DoD Response: Issues related to
contract type are not unique to the
application of this statutory authority
and are outside the scope of this case.
4. Comment: Treating intellectual
property flexibly. The respondent stated
that the final rule should expressly state
that the statute reconfirms the existing
authority at DFARS 227.7103–5(d) and
227.7103–1(a), since contracting officers
already have the authority to negotiate
the minimum rights needed to satisfy
the agency’s needs. The respondent also
stated that the final rule should
expressly state that contractors are not
required to change their accounting
practices if the Government uses this
authority to agree to deem the funding
mixed, since the fact that the contractor
allocates no private funding to a
‘‘deemed’’ mixed funding project should
not be grounds to question costs or the
‘‘deemed’’ mixed funding status.
DoD Response. DoD does not believe
it is necessary to expressly reconfirm
this policy. However, DoD has amended
the rule to add cross-references to the
appropriate sections. Adding these
cross-references introduced some
potential confusion regarding the
distinction between delivery
requirements and license rights. To
clarify this distinction, the text on
delivery requirements (at 212.7003(d) of
the interim rule) has been relocated to
212.7003(a), including cross-references;
and the text on license rights in
212.7003 has been included in a new
paragraph (b). To further clarify that
212.7003 covers both delivery
requirements and license rights,
additional changes were made to the
heading and introductory text of
212.7003, and to the cross-references in
212.7002–1(b) and 212.7002–2(b).
It is unnecessary to expressly state
that contractors are not required to
change their accounting practices when
the Government uses this statutory
authority, and the statute does not
mandate that these technologies will be
‘‘deemed’’ as mixed funding in all cases.
However, the comment highlights
potential confusion created by the
interim rule using the statute’s
permissive statement that data/software
acquired under contracts awarded using
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this authority ‘‘may be treated’’ as
mixed funding (former 212.7003
introductory text), combined with
imperative language that directs
negotiation of special license rights
‘‘* * * in view of the parties’’ relative
contributions to the development of the
items or processes’’ (former
212.7003(d)). To clarify the intent of the
rule, the introductory text at 212.7003
has been revised to state that there shall
be a rebuttable presumption of mixed
funding, and 212.7003(b)(4) has been
revised to specify when special license
rights should be negotiated, with crossreferences to the existing DFARS policy
regarding such negotiations. This
approach preserves many of the
efficiencies of the ‘‘normal’’ procedures
for acquiring commercial technologies
(e.g., a rebuttable presumption regarding
the most likely funding profiles and
their associated license rights), while
preserving the parties’ ability to
establish more appropriate license rights
when the presumption is not accurate or
equitable (e.g., by negotiating special
license rights, or by using the validation
of restrictive marking procedures).
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:
This rule amends the DFARS to
implement Section 847 of the National
Defense Authorization Act for Fiscal
Year 2004. Section 847 authorizes DoD
to carry out a pilot program for followon contracting for the production of
items or processes begun as prototype
projects under other transaction
agreements. Contracts and subcontracts
awarded under the program may be
treated as those for the acquisition of
commercial items; and items or
processes acquired under the program
may be treated as developed in part
with Federal funds and in part at private
expense for purposes of negotiating
rights in technical data.
DoD received no public comments
with regard to the impact of the rule on
small entities. As a result of comments
received on other aspects of the interim
rule, the final rule contains changes that
clarify the types of subcontracts that
may be treated as ‘‘commercial’’ under
the pilot program, and contains changes
that clarify the distinction between
delivery requirements and license rights
for technical data and computer
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Federal Register / Vol. 71, No. 70 / Wednesday, April 12, 2006 / Rules and Regulations
software for items or processes acquired
under the program.
The commercial procedures
authorized by the rule are intended to
ease the transition of nontraditional
defense contractors from other
transactions agreements to standard
DoD contracts and, therefore, are
expected to improve opportunities for
such entities to receive DoD contract
awards. In fiscal year 2005, DoD
awarded 78 other transaction
agreements totaling $150 million in
value. Of these, 22 were awarded to
small business concerns, totaling
approximately $40 million in value.
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 212
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Accordingly, the interim rule
amending 48 CFR part 212, which was
published at 69 FR 63329 on November
1, 2004, is adopted as a final rule with
the following changes:
I
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
1. The authority citation for 48 CFR
part 212 continues to read as follows:
I
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
2. Section 212.7002–1 is amended by
revising paragraph (b) to read as follows:
I
212.7002–1
Contracts under the program.
*
*
*
*
*
(b) See 212.7003 for special
procedures pertaining to technical data
and computer software.
I 3. Sections 212.7002–2 and 212.7003
are revised to read as follows:
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212.7002–2
program.
Subcontracts under the
(a) A subcontract for an item or
process that does not meet the
definition of ‘‘commercial item’’ may be
treated as a subcontract for a
commercial item, if the subcontract—
(1) Is for the production of an item or
process begun as a prototype project
under an other transaction agreement;
(2) Does not exceed $50,000,000;
(3) Is awarded on or before September
30, 2008;
(4) Is awarded to a nontraditional
defense contractor; and
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15:11 Apr 11, 2006
Jkt 208001
(5) Is either—
(i) A firm-fixed-price subcontract; or
(ii) A fixed-price subcontract with
economic price adjustment.
(b) See 212.7003 for special
procedures pertaining to technical data
and computer software.
212.7003 Technical data and computer
software.
For purposes of establishing delivery
requirements and license rights for
technical data under 227.7102 and for
computer software under 227.7202,
there shall be a rebuttable presumption
that items or processes acquired under
a contract or subcontract awarded in
accordance with 212.7002 were
developed in part with Federal funds
and in part at private expense (i.e.,
mixed funding).
(a) Delivery requirements. Acquire
only the technical data and computer
software that are necessary to satisfy
agency needs. Follow the requirements
at 227.7103–1 and 227.7103–2 for
technical data, and 227.7203–1 and
227.7203–2 for computer software.
(b) License rights. Acquire only the
license rights in technical data and
computer software that are necessary to
satisfy agency needs.
(1) For technical data, use the clauses
at 252.227–7013, Rights in Technical
Data—Noncommercial Items, and
252.227–7037, Validation of Restrictive
Markings on Technical Data.
(2) For computer software, use the
clauses at 252.227–7014, Rights in
Noncommercial Computer Software and
Noncommercial Computer Software
Documentation, and 252.227–7019,
Validation of Asserted Restrictions—
Computer Software.
(3) Require the contractor to include
the clauses prescribed by paragraphs
(b)(1) and (2) of this section in
subcontracts awarded in accordance
with 212.7002–2.
(4) When the standard license rights
for items or processes developed with
mixed funding do not provide the
minimum rights necessary to satisfy
agency needs, negotiate for special
license rights in accordance with
227.7103–5(d) and 227.7203–5(d).
[FR Doc. 06–3455 Filed 4–11–06; 8:45 am]
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18669
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 222
[DFARS Case 2003–D019]
Defense Federal Acquisition
Regulation Supplement; Labor Laws
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 update text regarding the
application of labor laws to Government
contracts. This rule is a result of a
transformation initiative undertaken by
DoD to dramatically change the purpose
and content of the DFARS.
DATES: Effective Date: April 12, 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) 602–0326;
facsimile (703) 602–0350. Please cite
DFARS Case 2003-D019.
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
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
DFARS changes—
• Update text addressing labor
requirements and labor relations matters
that affect DoD contracts; and
• Delete text addressing procedures
for referral of labor relations matters to
the appropriate authorities; for reporting
labor disputes and the impact of those
disputes on DoD requirements; for
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]]>Agencies
[Federal Register Volume 71, Number 70 (Wednesday, April 12, 2006)]
[Rules and Regulations]
[Pages 18667-18669]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3455]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 212
[DFARS Case 2003-D106]
Defense Federal Acquisition Regulation Supplement; Transition of
Weapons-Related Prototype Projects to Follow-On Contracts
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 847 of the National Defense Authorization Act for
Fiscal Year 2004. Section 847 authorizes DoD to carry out a pilot
program that permits the use of streamlined contracting procedures for
the production of items or processes begun as prototype projects under
other transaction agreements.
DATES: Effective Date: April 12, 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 2003-D106.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 69 FR 63329 on November 1, 2004,
to implement Section 847 of the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. 108-136). Section 847 authorizes DoD to carry
out a pilot program for follow-on contracting for the production of
items or processes begun as prototype projects under other transaction
agreements. Contracts and subcontracts awarded under the program may be
treated as those for the acquisition of commercial items; and items or
processes acquired under the program may be treated as developed in
part with Federal funds and in part at private expense for purposes of
negotiating rights in technical data.
One association submitted comments on the interim rule. A
discussion of the comments is provided below.
1. Comment: Definition of nontraditional defense contractor. The
respondent noted that the definition in the rule is consistent with the
statutory definition at 10 U.S.C. 2173, but stated
[[Page 18668]]
that the term ``performed on'' in paragraph (2) of the definition could
be interpreted to include commercial subcontractors that ``performed
on'' traditional defense contractors' prime contracts; this would
inappropriately exclude those contractors from the pilot program. The
respondent recommended revising paragraph (2)(ii) of the definition to
clarify that only contracts with Federal agencies subject to the FAR
for both prototype projects and basic, applied, or advanced research
projects will be considered in the determination of a nontraditional
defense contractor, because the current language could be interpreted
to include contracts not subject to the FAR.
DoD Response: The definition in the DFARS rule is consistent with
the definition provided in the statute, and the terminology referenced
by the respondent (i.e., ``performed on'') is identical to terminology
used by DoD in related longstanding policy and guidance (e.g., DoD's
audit policy for prototype projects that use other transaction
authority (32 CFR part 3) and DoD's Other Transactions Guide for
Prototype Projects). DoD is unaware of any issues with its
interpretation and believes that revising the definition could cause
unnecessary confusion. If a contractor has entered into another
transaction agreement and has not, for a period of at least 1 year
prior to the date of the other transaction agreement, been a direct
party to a contract (prime or subcontract) that was subject to full
cost accounting standards coverage or one that exceeded $500,000 to
carry out prototype projects or to perform basic, applied, or advanced
research projects for a Federal agency that is subject to the FAR, the
contractor qualifies as a nontraditional defense contractor.
2. Comment: Qualifying subcontracts. The respondent stated that the
interim rule incorrectly interprets the statute to mean that both the
prime contract and the subcontract must qualify in order for the
subcontract to be treated as a subcontract for a commercial item.
DoD Response: The statute does not require that the prime contract
also qualify; it only requires that the prime contract be a contract
for the prototype items or processes, which means a prime contract that
includes the prototype item or process, rather than one that is only
for the prototype items or processes. DoD has amended the rule to be
consistent with the statute.
3. Comment: Guidance on using fixed-price contracts. The respondent
stated that the use of firm-fixed-price contracts or fixed-price
contracts with economic price adjustment, as required by the statute,
can be very difficult for the first production contract and recommended
providing high level guidance for (i) adequately defining performance,
including addressing difficult-to-quantify risks expressly; (ii) using
interim fixed-price milestones and considering allowing later
milestones to be priced during performance as more knowledge is gained;
and (iii) ensuring that payments, including incentives, are linked to
achieving clearly defined cost and technical performance objectives.
DoD Response: Issues related to contract type are not unique to the
application of this statutory authority and are outside the scope of
this case.
4. Comment: Treating intellectual property flexibly. The respondent
stated that the final rule should expressly state that the statute
reconfirms the existing authority at DFARS 227.7103-5(d) and 227.7103-
1(a), since contracting officers already have the authority to
negotiate the minimum rights needed to satisfy the agency's needs. The
respondent also stated that the final rule should expressly state that
contractors are not required to change their accounting practices if
the Government uses this authority to agree to deem the funding mixed,
since the fact that the contractor allocates no private funding to a
``deemed'' mixed funding project should not be grounds to question
costs or the ``deemed'' mixed funding status.
DoD Response. DoD does not believe it is necessary to expressly
reconfirm this policy. However, DoD has amended the rule to add cross-
references to the appropriate sections. Adding these cross-references
introduced some potential confusion regarding the distinction between
delivery requirements and license rights. To clarify this distinction,
the text on delivery requirements (at 212.7003(d) of the interim rule)
has been relocated to 212.7003(a), including cross-references; and the
text on license rights in 212.7003 has been included in a new paragraph
(b). To further clarify that 212.7003 covers both delivery requirements
and license rights, additional changes were made to the heading and
introductory text of 212.7003, and to the cross-references in 212.7002-
1(b) and 212.7002-2(b).
It is unnecessary to expressly state that contractors are not
required to change their accounting practices when the Government uses
this statutory authority, and the statute does not mandate that these
technologies will be ``deemed'' as mixed funding in all cases. However,
the comment highlights potential confusion created by the interim rule
using the statute's permissive statement that data/software acquired
under contracts awarded using this authority ``may be treated'' as
mixed funding (former 212.7003 introductory text), combined with
imperative language that directs negotiation of special license rights
``* * * in view of the parties'' relative contributions to the
development of the items or processes'' (former 212.7003(d)). To
clarify the intent of the rule, the introductory text at 212.7003 has
been revised to state that there shall be a rebuttable presumption of
mixed funding, and 212.7003(b)(4) has been revised to specify when
special license rights should be negotiated, with cross-references to
the existing DFARS policy regarding such negotiations. This approach
preserves many of the efficiencies of the ``normal'' procedures for
acquiring commercial technologies (e.g., a rebuttable presumption
regarding the most likely funding profiles and their associated license
rights), while preserving the parties' ability to establish more
appropriate license rights when the presumption is not accurate or
equitable (e.g., by negotiating special license rights, or by using the
validation of restrictive marking procedures).
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:
This rule amends the DFARS to implement Section 847 of the National
Defense Authorization Act for Fiscal Year 2004. Section 847 authorizes
DoD to carry out a pilot program for follow-on contracting for the
production of items or processes begun as prototype projects under
other transaction agreements. Contracts and subcontracts awarded under
the program may be treated as those for the acquisition of commercial
items; and items or processes acquired under the program may be treated
as developed in part with Federal funds and in part at private expense
for purposes of negotiating rights in technical data.
DoD received no public comments with regard to the impact of the
rule on small entities. As a result of comments received on other
aspects of the interim rule, the final rule contains changes that
clarify the types of subcontracts that may be treated as ``commercial''
under the pilot program, and contains changes that clarify the
distinction between delivery requirements and license rights for
technical data and computer
[[Page 18669]]
software for items or processes acquired under the program.
The commercial procedures authorized by the rule are intended to
ease the transition of nontraditional defense contractors from other
transactions agreements to standard DoD contracts and, therefore, are
expected to improve opportunities for such entities to receive DoD
contract awards. In fiscal year 2005, DoD awarded 78 other transaction
agreements totaling $150 million in value. Of these, 22 were awarded to
small business concerns, totaling approximately $40 million in value.
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 212
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Accordingly, the interim rule amending 48 CFR part 212, which was
published at 69 FR 63329 on November 1, 2004, is adopted as a final
rule with the following changes:
PART 212--ACQUISITION OF COMMERCIAL ITEMS
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1. The authority citation for 48 CFR part 212 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
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2. Section 212.7002-1 is amended by revising paragraph (b) to read as
follows:
212.7002-1 Contracts under the program.
* * * * *
(b) See 212.7003 for special procedures pertaining to technical
data and computer software.
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3. Sections 212.7002-2 and 212.7003 are revised to read as follows:
212.7002-2 Subcontracts under the program.
(a) A subcontract for an item or process that does not meet the
definition of ``commercial item'' may be treated as a subcontract for a
commercial item, if the subcontract--
(1) Is for the production of an item or process begun as a
prototype project under an other transaction agreement;
(2) Does not exceed $50,000,000;
(3) Is awarded on or before September 30, 2008;
(4) Is awarded to a nontraditional defense contractor; and
(5) Is either--
(i) A firm-fixed-price subcontract; or
(ii) A fixed-price subcontract with economic price adjustment.
(b) See 212.7003 for special procedures pertaining to technical
data and computer software.
212.7003 Technical data and computer software.
For purposes of establishing delivery requirements and license
rights for technical data under 227.7102 and for computer software
under 227.7202, there shall be a rebuttable presumption that items or
processes acquired under a contract or subcontract awarded in
accordance with 212.7002 were developed in part with Federal funds and
in part at private expense (i.e., mixed funding).
(a) Delivery requirements. Acquire only the technical data and
computer software that are necessary to satisfy agency needs. Follow
the requirements at 227.7103-1 and 227.7103-2 for technical data, and
227.7203-1 and 227.7203-2 for computer software.
(b) License rights. Acquire only the license rights in technical
data and computer software that are necessary to satisfy agency needs.
(1) For technical data, use the clauses at 252.227-7013, Rights in
Technical Data--Noncommercial Items, and 252.227-7037, Validation of
Restrictive Markings on Technical Data.
(2) For computer software, use the clauses at 252.227-7014, Rights
in Noncommercial Computer Software and Noncommercial Computer Software
Documentation, and 252.227-7019, Validation of Asserted Restrictions--
Computer Software.
(3) Require the contractor to include the clauses prescribed by
paragraphs (b)(1) and (2) of this section in subcontracts awarded in
accordance with 212.7002-2.
(4) When the standard license rights for items or processes
developed with mixed funding do not provide the minimum rights
necessary to satisfy agency needs, negotiate for special license rights
in accordance with 227.7103-5(d) and 227.7203-5(d).
[FR Doc. 06-3455 Filed 4-11-06; 8:45 am]
BILLING CODE 5001-08-P
