Defense Federal Acquisition Regulation Supplement; Notification Requirements for Critical Safety Items (DFARS Case 2004-D008), 2633-2637 [E7-733]
Download as PDF
sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
may use the Governmentwide
commercial purchase card to make a
purchase that exceeds the micropurchase threshold but does not exceed
the simplified acquisition threshold if
certain conditions are met. See
213.301(3).
(5) Imprest funds and third party
drafts. Imprest funds are authorized for
use without further approval for
overseas transactions at or below the
micro-purchase threshold in support of
a contingency operation or a
humanitarian or peacekeeping
operation. See 213.305–3(d)(iii)(A).
(6) Standard Form (SF) 44, Purchase
Order-Invoice-Voucher. SF 44s may be
used for purchases not exceeding the
simplified acquisition threshold for
overseas transactions by contracting
officers in support of a contingency
operation or a humanitarian or
peacekeeping operation. See
213.306(a)(1)(B).
(7) Undefinitized contract actions.
The head of the agency may waive
certain limitations for undefinitized
contract actions if the head of the
agency determines that the waiver is
necessary to support a contingency
operation or a humanitarian or
peacekeeping operation. See 217.7404–
5(b).
(8) Prohibited sources. DoD personnel
are authorized to make emergency
acquisitions in direct support of U.S. or
allied forces deployed in military
contingency, humanitarian, or
peacekeeping operations in a country or
region subject to economic sanctions
administered by the Department of the
Treasury, Office of Foreign Assets
Control. See 225.701–70.
(9) Authorization Acts,
Appropriations Acts, and other
statutory restrictions on foreign
acquisition. Acquisitions in the
following categories are not subject to
the restrictions of 225.7002, Restrictions
on food, clothing, fabrics, specialty
metals, and hand or measuring tools: (1)
Acquisitions at or below the simplified
acquisition threshold; (2) Acquisitions
outside the United States in support of
combat operations; (3) Acquisitions of
perishable foods by or for activities
located outside the United States for
personnel of those activities; (4)
Acquisitions of food, specialty metals,
or hand or measuring tools in support
of contingency operations, or for which
the use of other than competitive
procedures has been approved on the
basis of unusual and compelling
urgency in accordance with FAR 6.302–
2; (5) Emergency acquisitions by
activities located outside the United
States for personnel of those activities;
VerDate Aug<31>2005
15:59 Jan 19, 2007
Jkt 211001
and (6) Acquisitions by vessels in
foreign waters. See 225.7002–2.
(10) Electronic submission and
processing of payment requests.
Contractors do not have to submit
payment requests in electronic form for
contracts awarded by deployed
contracting officers in the course of
military operations, including
contingency operations or humanitarian
or peacekeeping operations. See
232.7002(a)(4).
218.202 Defense or recovery from certain
attacks.
Policy for unique item identification.
Contractors will not be required to
provide DoD unique item identification
if the items, as determined by the head
of the agency, are to be used to facilitate
defense against or recovery from
nuclear, biological, chemical, or
radiological attack. See 211.274–2(b).
218.203 Incidents of national significance,
emergency declaration, or major disaster
declaration.
(1) Establishing or maintaining
alternative sources. PGI contains a
sample format for Determination and
Findings citing the authority of FAR
6.202(a), regarding exclusion of a
particular source in order to establish or
maintain an alternative source or
sources. Alternate 2 of the sample
format addresses having a supplier
available for furnishing supplies or
services in case of a national emergency.
See PGI 206.202.
(2) Electronic submission and
processing of payment requests.
Contractors do not have to submit
payment requests in electronic form for
contracts awarded by contracting
officers in the conduct of emergency
operations, such as responses to natural
disasters or national or civil
emergencies. See 232.7002(a)(4).
[FR Doc. E7–730 Filed 1–19–07; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 244, 246, and 252
RIN 0750–AF12
Defense Federal Acquisition
Regulation Supplement; Notification
Requirements for Critical Safety Items
(DFARS Case 2004–D008)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
PO 00000
Frm 00037
Fmt 4700
Sfmt 4700
2633
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to add policy regarding
notification of potential safety issues
under DoD contracts. The rule contains
a contract clause requiring contractors
to promptly notify the Government of
any nonconformance or deficiency that
could impact item safety.
DATES: Effective Date: January 22, 2007.
FOR FURTHER INFORMATION CONTACT: Mr.
Mark Gomersall, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3C132, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone (703) 602–0302;
facsimile (703) 602–0350. Please cite
DFARS Case 2004–D008.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule contains a new
contract clause requiring contractors to
notify the Government of any
nonconformance or deficiency that
could impact the safety of items
acquired by or serviced for the
Government. The rule is a result of
Section 8143 of the Fiscal Year 2004
DoD Appropriations Act (Pub. L. 108–
87), which required examination of
appropriate standards and procedures to
ensure timely notification to the
Government and contractors regarding
safety issues, including defective parts.
DoD published a proposed rule at 70
FR 44077 on August 1, 2005. Thirteen
respondents submitted comments on the
proposed rule. A discussion of the
comments is provided below.
1. Comment: One respondent
recommended amending the clause
prescription at DFARS 246.371(a)(2) and
(3) to change the term ‘‘system’’ to
‘‘critical safety system.’’
DoD Response: The term ‘‘system’’
relates to an assemblage of subsystems,
assemblies, and components that
comprise an end item. Adding ‘‘critical
safety’’ to the term ‘‘system’’ is
unnecessary and would be confusing
where major or less-than-major systems
are not described in terms such as
‘‘critical safety.’’
2. Comment: Five respondents
suggested requiring the use of the
Government-Industry Data Exchange
Program (GIDEP) as the method for
notification of safety issues and for
reporting all types of technical data and
reliability information.
DoD Response: The primary objective
of this DFARS rule is to ensure that
contractors who have delivered
defective products with potential safety
implications notify affected contracting
offices quickly, using whatever method
E:\FR\FM\22JAR1.SGM
22JAR1
sroberts on PROD1PC70 with RULES
2634
Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
the contractor determines to be most
expeditious. GIDEP may not be the most
efficient or effective notification
approach in many situations.
3. Comment: One respondent
suggested DoD include integrated
environmental safety and occupational
health issues in the coverage.
DoD Response: Environmental safety
and occupational health issues were not
included in the mandate that resulted in
the issuance of this DFARS rule (Section
8143 of the Fiscal Year 2004 DoD
Appropriations Act (Pub. L. 108–87)).
4. Comment: One respondent
recommended that the DFARS rule
include a timeframe for reaction by the
Government after notification.
DoD Response: The intent of the
DFARS rule is to ensure timely
notification of potential safety defects.
The time required by the Government to
respond to and effectively investigate
each incident will depend upon the
circumstances of the situation.
5. Comment: One respondent
requested a more specific definition of
‘‘safety’’ in the rule.
DoD Response: DoD has reexamined
all references to safety in the DFARS
rule and has determined that the term
is adequately explained in its context
each time it is used.
6. Comment: Five respondents
submitted comments regarding
timeframes for notification of potential
safety defects. One respondent indicated
that the requirement for notifying the
procuring contracting officer (PCO) and
the administrative contracting officer
(ACO) within 72 hours of potential
safety issues may cause over-reporting,
because the contractor will have
insufficient time to investigate the
situation internally. The respondent
requested flexibility regarding
notification but did not provide a
proposed timeframe for notification.
Another respondent questioned whether
72 hours would be realistic but
provided no recommended time frame.
Other respondents recommended
notification periods of 3 business days;
5 business days; and 10–30 working
days.
DoD Response: DoD concurs in
lengthening the written notification
period to 5 working days, but does not
concur in making the initial reporting
period for a potential safety defect
flexible. The initial notification of 72
hours is intended to ensure that the
customer is aware of potential safety
issues in delivered products, has a basic
understanding of the circumstances, and
has a point of contact to begin
addressing a mutually acceptable plan
of action. Because of the potential safety
implications, the initial notification is a
VerDate Aug<31>2005
15:59 Jan 19, 2007
Jkt 211001
matter of urgency. The 5-day written
notification period is consistent with
similar requirements in the civil sector.
The Federal Aviation Administration
regulations at 14 CFR 21.3(e) require
reporting of aviation failures,
malfunctions, or defects within 24 hours
after it has been determined that the
failure, malfunction, or defect has
occurred. Similarly, federal regulations
governing motor vehicles at 49 CFR
573.6(b) require submission of a report
not more than 5 working days after a
safety-related defect or noncompliance
has been determined to exist.
7. Comment: One respondent
expressed concern that the DFARS rule
does not indicate what information has
to be communicated or the distribution
or communication method.
DoD Response: Paragraph (c) of the
contract clause specifically describes
the communication and information
requirements.
8. Comment: One respondent stated
that the definition of ‘‘replenishment
part’’ in 246.101 is satisfactory, but the
phrase ‘‘purchased after provisioning’’
in the definition needs to be clarified or
deleted. The phrase, as currently
written, can cause confusion on whether
initial provisioning orders are covered.
DoD Response: DoD has amended the
rule to remove the references to
provisioning. The rule applies to all
repairable and consumable parts
identified as critical safety items.
9. Comment: One respondent
recommended limiting notification to
truly significant threats to safety from
malfunctioning systems or subsystems.
DoD Response: Defining ‘‘truly
significant threats to safety’’ would be
difficult and could result in inconsistent
application. Also, ‘‘build-to-print’’
manufacturers produce many critical
safety items and may not have
knowledge of an item’s ultimate
application or failure consequences.
10. Comment: One respondent
expressed concern that a contracting
officer might not know whether an item
was a critical safety item and might
include the notification requirement
when it is unnecessary.
DoD Response: The contract clause
specifies that the notification
requirement for parts applies to those
items identified as critical safety items.
The contracting officer will receive
input from technical/requirements
personnel as to which items fall into
that category, and will identify those
items in the contract.
11. Comment: One respondent was
concerned that the contracting officer
may not know whether a system,
subsystem, assembly, or subassembly is
‘‘integral to a system,’’ as stated in
PO 00000
Frm 00038
Fmt 4700
Sfmt 4700
DFARS 246.371, and may unnecessarily
impose the notification requirement.
DoD Response: The pertinent aspect
of the rule is that notification be
provided when there is a
nonconformance or deficiency that may
result in a safety impact for a system or
its constituent components. A
contracting officer or contractor
involved with systems, subsystems,
assemblies, or subassemblies will know
the application of the product and
whether it is integral to a system. The
phrase ‘‘integral to a system’’ is used in
FAR Part 34 in conjunction with items
of supply that may be replaced during
the service life of a system.
12. Comment: One respondent
expressed confusion as to whether the
notification requirement applies to
repair, maintenance, logistics support,
or overhaul services contracts where a
system, subsystem, assembly, or
subassembly is integral to a system and
failure or malfunction poses a safety
risk; or only to repairs that are integral
to the overall system regardless of
effects on subsystems, assemblies, and
subassemblies.
DoD Response: Within the context of
the DFARS rule, ‘‘integral to a system’’
means items of supply within a system
that may be replaced during the service
life of a system.
13. Comment: One respondent
suggested moving the definition of
‘‘critical safety item’’ from the contract
clause to 246.101.
DoD Response: The definition is
appropriately placed within the contract
clause, where the term is used.
14. Comment: One respondent stated
that the notification requirement in
paragraph (b)(2) of the contract clause
was more expansive than the definition
in 246.101, because it included the
phrase ‘‘or parts.’’ The respondent also
questioned whether the notification
requirement applied to parts or software
bugs that had no effect on the safety of
the item as a whole.
DoD Response: The final rule
excludes the definition of
‘‘replenishment part’’ from 246.101, and
clarifies, in 246.371(a), that the contract
clause applies to the acquisition of
repairable or consumable parts
identified as critical safety items.
Paragraph (b) of the contract clause
specifies that the notification
requirement applies to all
nonconformances for parts identified as
critical safety items; and all
nonconformances or deficiencies that
may result in a safety impact for
systems, or subsystems, assemblies,
subassemblies, or parts integral to a
system.
E:\FR\FM\22JAR1.SGM
22JAR1
sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
15. Comment: One respondent
expressed concern that the DFARS
clause permitted subcontractors to
bypass the prime or higher-tier
subcontractor and directly notify the
PCO and the ACO. The respondent was
concerned that this did not allow the
prime or higher-tier subcontractor to
independently evaluate the information
and assess its credibility, accuracy, or
impact.
DoD Response: Paragraph (f)(2)(i) of
the contract clause specifically requires
the subcontractor to notify the prime or
higher-tier subcontractor. Paragraph
(f)(2)(ii) of the clause requires the
subcontractor to also notify the ACO
and the PCO if the subcontractor is
aware of the ACO and the PCO for the
contract. Nothing in the clause
precludes the prime contractor or
higher-tier subcontractor from
independently evaluating the
information provided by the
subcontractor.
16. Comment: Two respondents
expressed concern regarding the flowdown requirements of the contract
clause. One respondent expressed
concern about flow-down to commercial
item subcontractors and to any
subcontractors whose work does not
involve critical safety items. Another
respondent recommended that flowdown be limited to only the acquisition
of replacement or replenishment spares.
DoD Response: The final rule clarifies
that the clause applies to contracts and
subcontracts for both commercial and
non-commercial items. This includes
contracts and subcontracts for parts
identified as critical safety items;
systems and subsystems, assemblies and
subassemblies integral to a system; and
repair, maintenance, logistics support,
or overhaul services for systems and
subsystems, assemblies, subassemblies,
and parts integral to a system.
17. Comment: One respondent stated
that the Government should supply and
maintain a comprehensive list of critical
safety items that is accessible to
contractors.
DoD Response: The parts that the
Government has designated as critical
safety items will be identified in the
applicable contracts.
18. Comment: Two respondents
recommended clarification of the term
‘‘technical nonconformance’’.
DoD Response: DoD agrees that the
term ‘‘technical nonconformance’’ could
cause confusion and, therefore, has
replaced this term with
‘‘nonconformance’’ in paragraph (b)(1)
of the contract clause.
19. Comment: Two respondents stated
that the term ‘‘safety impact’’ in the
VerDate Aug<31>2005
15:59 Jan 19, 2007
Jkt 211001
contract clause is not tangible or
properly defined.
DoD Response: The definition is
consistent with MIL–STD–882D,
Standard Practice for System Safety,
Appendix A, for critical mishap severity
categorization and mishap risk impact.
20. Comment: One respondent
recommended clarification that
contractor notification is required only
for parts sold to the Government and
does not include parts scrapped by the
contractor.
DoD Response: Paragraph (b) of the
contract clause specifies that the
notification requirement applies to
items acquired by or serviced for the
Government under the contract.
21. Comment: Three respondents
requested clarification of the term
‘‘credible information’’ as used in the
contract clause.
DoD Response: DoD has added a
definition of ‘‘credible information’’ to
the contract clause, based upon a
recommended definition provided by
one of the respondents.
22. Comment: One respondent
recommended that, instead of all critical
safety items being subject to the
reporting requirements of the contract
clause, the reporting be limited to those
situations resulting in safety impacts.
DoD Response: A significant
percentage of critical safety items
purchased by DoD are provided by
small businesses that may not know the
end item application of the components
they are supplying, nor the failure
modes and effects of the items. Many of
these small businesses may be unaware
of whether a nonconformance would
have a safety impact. Therefore, the
recommended change was not adopted.
23. Comment: One respondent stated
that the definition of ‘‘critical safety
item’’ does not indicate the level of
damage sufficient to constitute
‘‘serious’’ damage, and that it is unclear
what level of risk of personal injury
would be ‘‘unacceptable.’’ The
respondent recommended that the
language established for ‘‘safety impact’’
be used in the definition of ‘‘critical
safety item’’ to preclude ambiguity.
DoD Response: DoD has revised the
definition of ‘‘critical safety item’’ in the
contract clause to replace the potentially
ambiguous language with a reference to
the definition of ‘‘safety impact’’ within
the contract clause.
24. Comment: Two respondents
expressed concern with the definition of
‘‘safety impact’’ and associated dollar
thresholds for property damage. One
respondent stated that ‘‘safety impact’’
should focus on risk of injury or loss of
life instead of property damage. The
respondent suggested deleting ‘‘loss of a
PO 00000
Frm 00039
Fmt 4700
Sfmt 4700
2635
weapon system; or property damage
exceeding $200,000’’ from the definition
of ‘‘safety impact’’ or, alternatively,
replacing ‘‘$200,000’’ with ‘‘$1,000,000’’
to reflect realistic thresholds. Another
respondent recommended that the
definition of ‘‘safety impact’’ be revised
for consistency with the MIL–STD–882
Risk Hazard Matrix, rather than the
arbitrary property damage value of
$200,000.
DoD Response: DoD does not agree
that notification requirements should
apply only to risk of injury or loss of life
situations. However, the monetary value
specified in the rule has been revised to
$1,000,000 for consistency with MIL–
STD–882D, Appendix A, Table A–I.
25. Comment: One respondent stated
that the assertion in paragraph (e) of the
contract clause, that notification of
safety issues will neither be an
admission of responsibility nor a release
of liability, would not adequately
protect contractors from potential law
suits. The respondent suggested that the
clause include language that would
reimburse the contractor for liabilities
and expenses incidental to such
liabilities to third persons not
compensated by insurance or otherwise
without regard to and as an exception to
any limitation of cost or the limitation
of funds clause in the contract.
DoD Response: DoD cannot establish
a clause that grants Government
indemnification for liabilities to third
parties arising from compliance with the
clause. Absent express statutory
authority, the Government may not
enter into an agreement to hold
harmless or indemnify where the
amount of the Government’s liability is
indefinite, indeterminable, or
potentially unlimited.
26. Comment: One respondent stated
that the rule does not adequately define
‘‘critical safety items’’ and suggests that
the probability of failure be
incorporated in the definition.
DoD Response: The definition of
‘‘critical safety item’’ is based on public
law and existing DoD policies. Further,
probability of failure assumes a part will
be manufactured as specified. The
DFARS rule addresses notification when
a delivered item is nonconforming or
defective; thus, probability of failure
may not be meaningful.
27. Comment: One respondent
recommended that the requirement for
notification of safety defects be limited
to aviation products.
DoD Response: DoD does not agree
that the notification requirement should
be limited to the aviation community.
While the initial focus of critical safety
items resulted from Section 802 of the
National Defense Authorization Act for
E:\FR\FM\22JAR1.SGM
22JAR1
2636
Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
Fiscal Year 2004 (Pub. L. 108–136),
Section 8143 of the Fiscal Year 2004
DoD Appropriations Act (Public Law
108–87) required DoD to examine
appropriate standards and procedures
for timely notification regarding safety
issues, including defective parts. It is
essential that the Government be
notified of all potential safety defects,
regardless of product line.
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 certifies that this final rule will
not have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule applies only in
situations where nonconformances or
deficiencies could impact item safety.
The occurrence of such situations is
expected to be limited.
C. Paperwork Reduction Act
This final rule contains a new
information collection requirement. The
Office of Management and Budget has
approved the information collection for
use through December 31, 2009, under
Control Number 0704–0441.
List of Subjects in 48 CFR Parts 212,
244, 246, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 212, 244, 246,
and 252 are amended as follows:
I 1. The authority citation for 48 CFR
parts 212, 244, 246, and 252 continues
to read as follows:
I
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
2. Section 212.301 is amended by
adding paragraph (f)(xii) to read as
follows:
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
sroberts on PROD1PC70 with RULES
(f) * * *
(xii) Use the clause at 252.246–7003,
Notification of Potential Safety Issues,
as prescribed in 246.371.
3. Section 244.403 is revised to read
as follows:
VerDate Aug<31>2005
15:59 Jan 19, 2007
Jkt 211001
PART 246—QUALITY ASSURANCE
4. Section 246.371 is added to read as
follows:
I
246.371
issues.
Notification of potential safety
(a) Use the clause at 252.246–7003,
Notification of Potential Safety Issues,
in solicitations and contracts for the
acquisition of—
(1) Repairable or consumable parts
identified as critical safety items;
(2) Systems and subsystems,
assemblies, and subassemblies integral
to a system; or
(3) Repair, maintenance, logistics
support, or overhaul services for
systems and subsystems, assemblies,
subassemblies, and parts integral to a
system.
(b) Follow the procedures at PGI
246.371 for the handling of notifications
received under the clause at 252.246–
7003.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
5. Section 252.244–7000 is revised to
read as follows:
I
As prescribed in 244.403, use the
following clause:
I
I
Contract clause.
Use the clause at 252.244–7000,
Subcontracts for Commercial Items and
Commercial Components (DoD
Contracts), in solicitations and contracts
for supplies or services other than
commercial items, that contain any of
the following clauses:
(1) 252.225–7014 Preference for
Domestic Specialty Metals, Alternate I.
(2) 252.246–7003 Notification of
Potential Safety Issues.
(3) 252.247–7023 Transportation of
Supplies by Sea.
(4) 252.247–7024 Notification of
Transportation of Supplies by Sea.
252.244–7000 Subcontracts for
Commercial Items and Commercial
Components (DoD Contracts).
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
PART 244—SUBCONTRACTING
POLICIES AND PROCEDURES
244.403
Subcontracts for Commercial Items and
Commercial Components (DOD Contracts)
(JAN 2007)
In addition to the clauses listed in
paragraph (c) of the Subcontracts for
Commercial Items clause of this contract
(Federal Acquisition Regulation 52.244–6),
the Contractor shall include the terms of the
following clauses, if applicable, in
subcontracts for commercial items or
commercial components, awarded at any tier
under this contract:
(a) 252.225–7014 Preference for Domestic
Specialty Metals, Alternate I (10 U.S.C. 2241
note).
(b) 252.246–7003 Notification of Potential
Safety Issues.
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
(c) 252.247–7023 Transportation of
Supplies by Sea (10 U.S.C. 2631).
(d) 252.247–7024 Notification of
Transportation of Supplies by Sea (10 U.S.C.
2631).
(End of clause)
I 6. Section 252.246–7003 is added to
read as follows:
252.246–7003 Notification of Potential
Safety Issues.
As prescribed in 246.371(a), use the
following clause:
Notification of Potential Safety Issues (JAN
2007)
(a) Definitions. As used in this clause—
Credible information means information
that, considering its source and the
surrounding circumstances, supports a
reasonable belief that an event has occurred
or will occur.
Critical safety item means a part,
subassembly, assembly, subsystem,
installation equipment, or support equipment
for a system that contains a characteristic,
any failure, malfunction, or absence of which
could have a safety impact.
Safety impact means the occurrence of
death, permanent total disability, permanent
partial disability, or injury or occupational
illness requiring hospitalization; loss of a
weapon system; or property damage
exceeding $1,000,000.
Subcontractor means any supplier,
distributor, vendor, or firm that furnishes
supplies or services to or for the Contractor
or another subcontractor under this contract.
(b) The Contractor shall provide
notification, in accordance with paragraph (c)
of this clause, of—
(1) All nonconformances for parts
identified as critical safety items acquired by
the Government under this contract; and
(2) All nonconformances or deficiencies
that may result in a safety impact for systems,
or subsystems, assemblies, subassemblies, or
parts integral to a system, acquired by or
serviced for the Government under this
contract.
(c) The Contractor—
(1) Shall notify the Administrative
Contracting Officer (ACO) and the Procuring
Contracting Officer (PCO) as soon as
practicable, but not later than 72 hours, after
discovering or acquiring credible information
concerning nonconformances and
deficiencies described in paragraph (b) of this
clause; and
(2) Shall provide a written notification to
the ACO and the PCO within 5 working days
that includes—
(i) A summary of the defect or
nonconformance;
(ii) A chronology of pertinent events;
(iii) The identification of potentially
affected items to the extent known at the time
of notification;
(iv) A point of contact to coordinate
problem analysis and resolution; and
(v) Any other relevant information.
(d) The Contractor—
(1) Is responsible for the notification of
potential safety issues occurring with regard
to an item furnished by any subcontractor;
and
E:\FR\FM\22JAR1.SGM
22JAR1
Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
(2) Shall facilitate direct communication
between the Government and the
subcontractor as necessary.
(e) Notification of safety issues under this
clause shall be considered neither an
admission of responsibility nor a release of
liability for the defect or its consequences.
This clause does not affect any right of the
Government or the Contractor established
elsewhere in this contract.
(f)(1) The Contractor shall include the
substance of this clause, including this
paragraph (f), in subcontracts for—
(i) Parts identified as critical safety items;
(ii) Systems and subsystems, assemblies,
and subassemblies integral to a system; or
(iii) Repair, maintenance, logistics support,
or overhaul services for systems and
subsystems, assemblies, subassemblies, and
parts integral to a system.
(2) For those subcontracts described in
paragraph (f)(1) of this clause, the Contractor
shall require the subcontractor to provide the
notification required by paragraph (c) of this
clause to—
(i) The Contractor or higher-tier
subcontractor; and
(ii) The ACO and the PCO, if the
subcontractor is aware of the ACO and the
PCO for the contract.
(End of clause)
[FR Doc. E7–733 Filed 1–19–07; 8:45 am]
BILLING CODE 5001–08–P
Comment date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before March 23, 2007, to be
considered in the formation of the final
rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2006–D031,
using any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail: dfars@osd.mil. Include
DFARS Case 2006–D031 in the subject
line of the message.
• Fax: (703) 602–0350.
• Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy
Williams, OUSD (AT&L) DPAP (DARS),
IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301–3062.
• Hand Delivery/Courier: Defense
Acquisition Regulations System, Crystal
Square 4, Suite 200A, 241 18th Street,
Arlington, VA 22202–3402.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, (703) 602–0328.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF DEFENSE
A. Background
Defense Acquisition Regulations
System
This interim rule amends DFARS
225.7002–1 and the corresponding
contract clause at 252.225–7012 to
implement Section 833(b) of the
National Defense Authorization Act for
Fiscal Year 2006 (Pub. L. 109–163).
Section 833(b) amended 10 U.S.C. 2533a
(the Berry Amendment) to expand the
foreign source restrictions applicable to
the acquisition of clothing to also
include clothing materials and
components, other than sensors,
electronics, or other items added to, and
not normally associated with, clothing
and the materials and components
thereof. The rule also includes examples
of items subject to the restrictions.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
48 CFR Parts 225 and 252
RIN 0750–AF54
Defense Federal Acquisition
Regulation Supplement; Berry
Amendment Restrictions—Clothing
Materials and Components Covered
(DFARS Case 2006–D031)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule with request for
comments.
sroberts on PROD1PC70 with RULES
AGENCY:
SUMMARY: DoD has issued an interim
rule amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement Section 833(b) of
the National Defense Authorization Act
for Fiscal Year 2006. Section 833(b)
expands the foreign source restrictions
applicable to the acquisition of clothing
to also include clothing materials and
components, other than sensors,
electronics, or other items added to, and
not normally associated with, clothing
and the materials and components
thereof.
DATES:
Effective date: January 22, 2007.
VerDate Aug<31>2005
15:59 Jan 19, 2007
Jkt 211001
B. Regulatory Flexibility Act
DoD has prepared an initial regulatory
flexibility analysis consistent with 5
U.S.C. 603. 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 provide
for the acquisition of clothing, and
clothing materials and components,
from domestic sources in accordance
with statutory requirements. The legal
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
2637
basis for the rule is 10 U.S.C. 2533a (the
Berry Amendment), as amended by
Section 833(b) of the National Defense
Authorization Act for Fiscal Year 2006
(Pub. L. 109–163). The rule will apply
to entities interested in receiving DoD
contracts or subcontracts for the
acquisition of clothing. Based on data
generated from the DD Form 350,
Individual Contracting Action Report,
DoD awarded 6,072 contract actions
relating to the acquisition of clothing
items during fiscal year 2005. These
actions had a total dollar value of $1.868
billion and involved 1,110 contractors.
Of these actions, 4,087 totaling $.81
billion involved 906 contractors that
were small business concerns. This rule
may have a positive impact on small
businesses that manufacture clothing
materials and components, by reducing
foreign competition. However, the rule
could have a negative impact on small
businesses that have been using foreign
components in the manufacture of
clothing products.
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 2006–D031.
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.
D. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
that urgent and compelling reasons exist
to publish an interim rule prior to
affording the public an opportunity to
comment. This interim rule implements
Section 833(b) of the National Defense
Authorization Act for Fiscal Year 2006
(Public Law 109–163). Section 833(b)
expands the foreign source restrictions
applicable to the acquisition of clothing,
to also include clothing materials and
components, other than sensors,
electronics, or other items added to, and
not normally associated with, clothing
and the materials and components
thereof. Section 833(b) became effective
upon enactment on January 6, 2006.
Comments received in response to this
interim rule will be considered in the
formation of the final rule.
E:\FR\FM\22JAR1.SGM
22JAR1
Agencies
[Federal Register Volume 72, Number 13 (Monday, January 22, 2007)]
[Rules and Regulations]
[Pages 2633-2637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-733]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 244, 246, and 252
RIN 0750-AF12
Defense Federal Acquisition Regulation Supplement; Notification
Requirements for Critical Safety Items (DFARS Case 2004-D008)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD has issued a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to add policy regarding
notification of potential safety issues under DoD contracts. The rule
contains a contract clause requiring contractors to promptly notify the
Government of any nonconformance or deficiency that could impact item
safety.
DATES: Effective Date: January 22, 2007.
FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, Defense
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132,
3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-
0302; facsimile (703) 602-0350. Please cite DFARS Case 2004-D008.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule contains a new contract clause requiring
contractors to notify the Government of any nonconformance or
deficiency that could impact the safety of items acquired by or
serviced for the Government. The rule is a result of Section 8143 of
the Fiscal Year 2004 DoD Appropriations Act (Pub. L. 108-87), which
required examination of appropriate standards and procedures to ensure
timely notification to the Government and contractors regarding safety
issues, including defective parts.
DoD published a proposed rule at 70 FR 44077 on August 1, 2005.
Thirteen respondents submitted comments on the proposed rule. A
discussion of the comments is provided below.
1. Comment: One respondent recommended amending the clause
prescription at DFARS 246.371(a)(2) and (3) to change the term
``system'' to ``critical safety system.''
DoD Response: The term ``system'' relates to an assemblage of
subsystems, assemblies, and components that comprise an end item.
Adding ``critical safety'' to the term ``system'' is unnecessary and
would be confusing where major or less-than-major systems are not
described in terms such as ``critical safety.''
2. Comment: Five respondents suggested requiring the use of the
Government-Industry Data Exchange Program (GIDEP) as the method for
notification of safety issues and for reporting all types of technical
data and reliability information.
DoD Response: The primary objective of this DFARS rule is to ensure
that contractors who have delivered defective products with potential
safety implications notify affected contracting offices quickly, using
whatever method
[[Page 2634]]
the contractor determines to be most expeditious. GIDEP may not be the
most efficient or effective notification approach in many situations.
3. Comment: One respondent suggested DoD include integrated
environmental safety and occupational health issues in the coverage.
DoD Response: Environmental safety and occupational health issues
were not included in the mandate that resulted in the issuance of this
DFARS rule (Section 8143 of the Fiscal Year 2004 DoD Appropriations Act
(Pub. L. 108-87)).
4. Comment: One respondent recommended that the DFARS rule include
a timeframe for reaction by the Government after notification.
DoD Response: The intent of the DFARS rule is to ensure timely
notification of potential safety defects. The time required by the
Government to respond to and effectively investigate each incident will
depend upon the circumstances of the situation.
5. Comment: One respondent requested a more specific definition of
``safety'' in the rule.
DoD Response: DoD has reexamined all references to safety in the
DFARS rule and has determined that the term is adequately explained in
its context each time it is used.
6. Comment: Five respondents submitted comments regarding
timeframes for notification of potential safety defects. One respondent
indicated that the requirement for notifying the procuring contracting
officer (PCO) and the administrative contracting officer (ACO) within
72 hours of potential safety issues may cause over-reporting, because
the contractor will have insufficient time to investigate the situation
internally. The respondent requested flexibility regarding notification
but did not provide a proposed timeframe for notification. Another
respondent questioned whether 72 hours would be realistic but provided
no recommended time frame. Other respondents recommended notification
periods of 3 business days; 5 business days; and 10-30 working days.
DoD Response: DoD concurs in lengthening the written notification
period to 5 working days, but does not concur in making the initial
reporting period for a potential safety defect flexible. The initial
notification of 72 hours is intended to ensure that the customer is
aware of potential safety issues in delivered products, has a basic
understanding of the circumstances, and has a point of contact to begin
addressing a mutually acceptable plan of action. Because of the
potential safety implications, the initial notification is a matter of
urgency. The 5-day written notification period is consistent with
similar requirements in the civil sector. The Federal Aviation
Administration regulations at 14 CFR 21.3(e) require reporting of
aviation failures, malfunctions, or defects within 24 hours after it
has been determined that the failure, malfunction, or defect has
occurred. Similarly, federal regulations governing motor vehicles at 49
CFR 573.6(b) require submission of a report not more than 5 working
days after a safety-related defect or noncompliance has been determined
to exist.
7. Comment: One respondent expressed concern that the DFARS rule
does not indicate what information has to be communicated or the
distribution or communication method.
DoD Response: Paragraph (c) of the contract clause specifically
describes the communication and information requirements.
8. Comment: One respondent stated that the definition of
``replenishment part'' in 246.101 is satisfactory, but the phrase
``purchased after provisioning'' in the definition needs to be
clarified or deleted. The phrase, as currently written, can cause
confusion on whether initial provisioning orders are covered.
DoD Response: DoD has amended the rule to remove the references to
provisioning. The rule applies to all repairable and consumable parts
identified as critical safety items.
9. Comment: One respondent recommended limiting notification to
truly significant threats to safety from malfunctioning systems or
subsystems.
DoD Response: Defining ``truly significant threats to safety''
would be difficult and could result in inconsistent application. Also,
``build-to-print'' manufacturers produce many critical safety items and
may not have knowledge of an item's ultimate application or failure
consequences.
10. Comment: One respondent expressed concern that a contracting
officer might not know whether an item was a critical safety item and
might include the notification requirement when it is unnecessary.
DoD Response: The contract clause specifies that the notification
requirement for parts applies to those items identified as critical
safety items. The contracting officer will receive input from
technical/requirements personnel as to which items fall into that
category, and will identify those items in the contract.
11. Comment: One respondent was concerned that the contracting
officer may not know whether a system, subsystem, assembly, or
subassembly is ``integral to a system,'' as stated in DFARS 246.371,
and may unnecessarily impose the notification requirement.
DoD Response: The pertinent aspect of the rule is that notification
be provided when there is a nonconformance or deficiency that may
result in a safety impact for a system or its constituent components. A
contracting officer or contractor involved with systems, subsystems,
assemblies, or subassemblies will know the application of the product
and whether it is integral to a system. The phrase ``integral to a
system'' is used in FAR Part 34 in conjunction with items of supply
that may be replaced during the service life of a system.
12. Comment: One respondent expressed confusion as to whether the
notification requirement applies to repair, maintenance, logistics
support, or overhaul services contracts where a system, subsystem,
assembly, or subassembly is integral to a system and failure or
malfunction poses a safety risk; or only to repairs that are integral
to the overall system regardless of effects on subsystems, assemblies,
and subassemblies.
DoD Response: Within the context of the DFARS rule, ``integral to a
system'' means items of supply within a system that may be replaced
during the service life of a system.
13. Comment: One respondent suggested moving the definition of
``critical safety item'' from the contract clause to 246.101.
DoD Response: The definition is appropriately placed within the
contract clause, where the term is used.
14. Comment: One respondent stated that the notification
requirement in paragraph (b)(2) of the contract clause was more
expansive than the definition in 246.101, because it included the
phrase ``or parts.'' The respondent also questioned whether the
notification requirement applied to parts or software bugs that had no
effect on the safety of the item as a whole.
DoD Response: The final rule excludes the definition of
``replenishment part'' from 246.101, and clarifies, in 246.371(a), that
the contract clause applies to the acquisition of repairable or
consumable parts identified as critical safety items. Paragraph (b) of
the contract clause specifies that the notification requirement applies
to all nonconformances for parts identified as critical safety items;
and all nonconformances or deficiencies that may result in a safety
impact for systems, or subsystems, assemblies, subassemblies, or parts
integral to a system.
[[Page 2635]]
15. Comment: One respondent expressed concern that the DFARS clause
permitted subcontractors to bypass the prime or higher-tier
subcontractor and directly notify the PCO and the ACO. The respondent
was concerned that this did not allow the prime or higher-tier
subcontractor to independently evaluate the information and assess its
credibility, accuracy, or impact.
DoD Response: Paragraph (f)(2)(i) of the contract clause
specifically requires the subcontractor to notify the prime or higher-
tier subcontractor. Paragraph (f)(2)(ii) of the clause requires the
subcontractor to also notify the ACO and the PCO if the subcontractor
is aware of the ACO and the PCO for the contract. Nothing in the clause
precludes the prime contractor or higher-tier subcontractor from
independently evaluating the information provided by the subcontractor.
16. Comment: Two respondents expressed concern regarding the flow-
down requirements of the contract clause. One respondent expressed
concern about flow-down to commercial item subcontractors and to any
subcontractors whose work does not involve critical safety items.
Another respondent recommended that flow-down be limited to only the
acquisition of replacement or replenishment spares.
DoD Response: The final rule clarifies that the clause applies to
contracts and subcontracts for both commercial and non-commercial
items. This includes contracts and subcontracts for parts identified as
critical safety items; systems and subsystems, assemblies and
subassemblies integral to a system; and repair, maintenance, logistics
support, or overhaul services for systems and subsystems, assemblies,
subassemblies, and parts integral to a system.
17. Comment: One respondent stated that the Government should
supply and maintain a comprehensive list of critical safety items that
is accessible to contractors.
DoD Response: The parts that the Government has designated as
critical safety items will be identified in the applicable contracts.
18. Comment: Two respondents recommended clarification of the term
``technical nonconformance''.
DoD Response: DoD agrees that the term ``technical nonconformance''
could cause confusion and, therefore, has replaced this term with
``nonconformance'' in paragraph (b)(1) of the contract clause.
19. Comment: Two respondents stated that the term ``safety impact''
in the contract clause is not tangible or properly defined.
DoD Response: The definition is consistent with MIL-STD-882D,
Standard Practice for System Safety, Appendix A, for critical mishap
severity categorization and mishap risk impact.
20. Comment: One respondent recommended clarification that
contractor notification is required only for parts sold to the
Government and does not include parts scrapped by the contractor.
DoD Response: Paragraph (b) of the contract clause specifies that
the notification requirement applies to items acquired by or serviced
for the Government under the contract.
21. Comment: Three respondents requested clarification of the term
``credible information'' as used in the contract clause.
DoD Response: DoD has added a definition of ``credible
information'' to the contract clause, based upon a recommended
definition provided by one of the respondents.
22. Comment: One respondent recommended that, instead of all
critical safety items being subject to the reporting requirements of
the contract clause, the reporting be limited to those situations
resulting in safety impacts.
DoD Response: A significant percentage of critical safety items
purchased by DoD are provided by small businesses that may not know the
end item application of the components they are supplying, nor the
failure modes and effects of the items. Many of these small businesses
may be unaware of whether a nonconformance would have a safety impact.
Therefore, the recommended change was not adopted.
23. Comment: One respondent stated that the definition of
``critical safety item'' does not indicate the level of damage
sufficient to constitute ``serious'' damage, and that it is unclear
what level of risk of personal injury would be ``unacceptable.'' The
respondent recommended that the language established for ``safety
impact'' be used in the definition of ``critical safety item'' to
preclude ambiguity.
DoD Response: DoD has revised the definition of ``critical safety
item'' in the contract clause to replace the potentially ambiguous
language with a reference to the definition of ``safety impact'' within
the contract clause.
24. Comment: Two respondents expressed concern with the definition
of ``safety impact'' and associated dollar thresholds for property
damage. One respondent stated that ``safety impact'' should focus on
risk of injury or loss of life instead of property damage. The
respondent suggested deleting ``loss of a weapon system; or property
damage exceeding $200,000'' from the definition of ``safety impact''
or, alternatively, replacing ``$200,000'' with ``$1,000,000'' to
reflect realistic thresholds. Another respondent recommended that the
definition of ``safety impact'' be revised for consistency with the
MIL-STD-882 Risk Hazard Matrix, rather than the arbitrary property
damage value of $200,000.
DoD Response: DoD does not agree that notification requirements
should apply only to risk of injury or loss of life situations.
However, the monetary value specified in the rule has been revised to
$1,000,000 for consistency with MIL-STD-882D, Appendix A, Table A-I.
25. Comment: One respondent stated that the assertion in paragraph
(e) of the contract clause, that notification of safety issues will
neither be an admission of responsibility nor a release of liability,
would not adequately protect contractors from potential law suits. The
respondent suggested that the clause include language that would
reimburse the contractor for liabilities and expenses incidental to
such liabilities to third persons not compensated by insurance or
otherwise without regard to and as an exception to any limitation of
cost or the limitation of funds clause in the contract.
DoD Response: DoD cannot establish a clause that grants Government
indemnification for liabilities to third parties arising from
compliance with the clause. Absent express statutory authority, the
Government may not enter into an agreement to hold harmless or
indemnify where the amount of the Government's liability is indefinite,
indeterminable, or potentially unlimited.
26. Comment: One respondent stated that the rule does not
adequately define ``critical safety items'' and suggests that the
probability of failure be incorporated in the definition.
DoD Response: The definition of ``critical safety item'' is based
on public law and existing DoD policies. Further, probability of
failure assumes a part will be manufactured as specified. The DFARS
rule addresses notification when a delivered item is nonconforming or
defective; thus, probability of failure may not be meaningful.
27. Comment: One respondent recommended that the requirement for
notification of safety defects be limited to aviation products.
DoD Response: DoD does not agree that the notification requirement
should be limited to the aviation community. While the initial focus of
critical safety items resulted from Section 802 of the National Defense
Authorization Act for
[[Page 2636]]
Fiscal Year 2004 (Pub. L. 108-136), Section 8143 of the Fiscal Year
2004 DoD Appropriations Act (Public Law 108-87) required DoD to examine
appropriate standards and procedures for timely notification regarding
safety issues, including defective parts. It is essential that the
Government be notified of all potential safety defects, regardless of
product line.
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 certifies that this final rule will not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule applies only in situations where nonconformances or
deficiencies could impact item safety. The occurrence of such
situations is expected to be limited.
C. Paperwork Reduction Act
This final rule contains a new information collection requirement.
The Office of Management and Budget has approved the information
collection for use through December 31, 2009, under Control Number
0704-0441.
List of Subjects in 48 CFR Parts 212, 244, 246, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 212, 244, 246, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 212, 244, 246, and 252
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Section 212.301 is amended by adding paragraph (f)(xii) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(xii) Use the clause at 252.246-7003, Notification of Potential
Safety Issues, as prescribed in 246.371.
PART 244--SUBCONTRACTING POLICIES AND PROCEDURES
0
3. Section 244.403 is revised to read as follows:
244.403 Contract clause.
Use the clause at 252.244-7000, Subcontracts for Commercial Items
and Commercial Components (DoD Contracts), in solicitations and
contracts for supplies or services other than commercial items, that
contain any of the following clauses:
(1) 252.225-7014 Preference for Domestic Specialty Metals,
Alternate I.
(2) 252.246-7003 Notification of Potential Safety Issues.
(3) 252.247-7023 Transportation of Supplies by Sea.
(4) 252.247-7024 Notification of Transportation of Supplies by Sea.
PART 246--QUALITY ASSURANCE
0
4. Section 246.371 is added to read as follows:
246.371 Notification of potential safety issues.
(a) Use the clause at 252.246-7003, Notification of Potential
Safety Issues, in solicitations and contracts for the acquisition of--
(1) Repairable or consumable parts identified as critical safety
items;
(2) Systems and subsystems, assemblies, and subassemblies integral
to a system; or
(3) Repair, maintenance, logistics support, or overhaul services
for systems and subsystems, assemblies, subassemblies, and parts
integral to a system.
(b) Follow the procedures at PGI 246.371 for the handling of
notifications received under the clause at 252.246-7003.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Section 252.244-7000 is revised to read as follows:
252.244-7000 Subcontracts for Commercial Items and Commercial
Components (DoD Contracts).
As prescribed in 244.403, use the following clause:
Subcontracts for Commercial Items and Commercial Components (DOD
Contracts) (JAN 2007)
In addition to the clauses listed in paragraph (c) of the
Subcontracts for Commercial Items clause of this contract (Federal
Acquisition Regulation 52.244-6), the Contractor shall include the
terms of the following clauses, if applicable, in subcontracts for
commercial items or commercial components, awarded at any tier under
this contract:
(a) 252.225-7014 Preference for Domestic Specialty Metals,
Alternate I (10 U.S.C. 2241 note).
(b) 252.246-7003 Notification of Potential Safety Issues.
(c) 252.247-7023 Transportation of Supplies by Sea (10 U.S.C.
2631).
(d) 252.247-7024 Notification of Transportation of Supplies by
Sea (10 U.S.C. 2631).
(End of clause)
0
6. Section 252.246-7003 is added to read as follows:
252.246-7003 Notification of Potential Safety Issues.
As prescribed in 246.371(a), use the following clause:
Notification of Potential Safety Issues (JAN 2007)
(a) Definitions. As used in this clause--
Credible information means information that, considering its
source and the surrounding circumstances, supports a reasonable
belief that an event has occurred or will occur.
Critical safety item means a part, subassembly, assembly,
subsystem, installation equipment, or support equipment for a system
that contains a characteristic, any failure, malfunction, or absence
of which could have a safety impact.
Safety impact means the occurrence of death, permanent total
disability, permanent partial disability, or injury or occupational
illness requiring hospitalization; loss of a weapon system; or
property damage exceeding $1,000,000.
Subcontractor means any supplier, distributor, vendor, or firm
that furnishes supplies or services to or for the Contractor or
another subcontractor under this contract.
(b) The Contractor shall provide notification, in accordance
with paragraph (c) of this clause, of--
(1) All nonconformances for parts identified as critical safety
items acquired by the Government under this contract; and
(2) All nonconformances or deficiencies that may result in a
safety impact for systems, or subsystems, assemblies, subassemblies,
or parts integral to a system, acquired by or serviced for the
Government under this contract.
(c) The Contractor--
(1) Shall notify the Administrative Contracting Officer (ACO)
and the Procuring Contracting Officer (PCO) as soon as practicable,
but not later than 72 hours, after discovering or acquiring credible
information concerning nonconformances and deficiencies described in
paragraph (b) of this clause; and
(2) Shall provide a written notification to the ACO and the PCO
within 5 working days that includes--
(i) A summary of the defect or nonconformance;
(ii) A chronology of pertinent events;
(iii) The identification of potentially affected items to the
extent known at the time of notification;
(iv) A point of contact to coordinate problem analysis and
resolution; and
(v) Any other relevant information.
(d) The Contractor--
(1) Is responsible for the notification of potential safety
issues occurring with regard to an item furnished by any
subcontractor; and
[[Page 2637]]
(2) Shall facilitate direct communication between the Government
and the subcontractor as necessary.
(e) Notification of safety issues under this clause shall be
considered neither an admission of responsibility nor a release of
liability for the defect or its consequences. This clause does not
affect any right of the Government or the Contractor established
elsewhere in this contract.
(f)(1) The Contractor shall include the substance of this
clause, including this paragraph (f), in subcontracts for--
(i) Parts identified as critical safety items;
(ii) Systems and subsystems, assemblies, and subassemblies
integral to a system; or
(iii) Repair, maintenance, logistics support, or overhaul
services for systems and subsystems, assemblies, subassemblies, and
parts integral to a system.
(2) For those subcontracts described in paragraph (f)(1) of this
clause, the Contractor shall require the subcontractor to provide
the notification required by paragraph (c) of this clause to--
(i) The Contractor or higher-tier subcontractor; and
(ii) The ACO and the PCO, if the subcontractor is aware of the
ACO and the PCO for the contract.
(End of clause)
[FR Doc. E7-733 Filed 1-19-07; 8:45 am]
BILLING CODE 5001-08-P