Defense Federal Acquisition Regulation Supplement; Acquisitions in Support of Operations in Iraq or Afghanistan (DFARS Case 2008-D002), 53151-53156 [E8-21376]
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Federal Register / Vol. 73, No. 179 / Monday, September 15, 2008 / Rules and Regulations
(E) Developing (and periodically
updating) a list of items of durable
medical equipment which are subject to
prior authorization.
(3) Employees of a contractor,
subcontractor, or state agency
performing survey, certification, or
enforcement functions under title XVIII
of the Social Security Act or Section 353
of the Public Health Service Act but
only to the extent the requested
information was acquired in the course
of performing those functions and
regardless of whether documents are
also relevant to the state’s activities.
(4) Employees and qualified
contractors of an entity covered under
the Federally Supported Health Centers
Assistance Act of 1992, as amended, 42
U.S.C. 233(g)–(n), (FSHCAA), provided
that the testimony is requested in
medical malpractice tort litigation and
relates to the performance of medical,
surgical, dental or related functions
which were performed by the entity, its
employees and qualified contractors at a
time when the DHHS deemed the entity
and its employees and qualified
contractors to be covered by the
FSHCAA.
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Dated: August 28, 2008.
Michael O. Leavitt,
Secretary.
[FR Doc. E8–21113 Filed 9–12–08; 8:45 am]
BILLING CODE 4150–26–P
20301–3062. Telephone 703–602–0311;
facsimile 703–602–7887.
SUPPLEMENTARY INFORMATION: This final
rule amends DFARS text as follows:
• 202.101. Adds the U.S.
Transportation Command to the list of
DoD contracting activities.
• 252.212–7001. Amends the
reference to the clause at 252.219–7004
in paragraph (b)(3) to reflect the current
clause date.
List of Subjects in 48 CFR Parts 202 and
252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 202 and 252
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 202 and 252 continues to read as
follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 202—DEFINITIONS OF WORDS
AND TERMS
202.101
[Amended]
2. Section 202.101 is amended in the
definition of ‘‘Contracting activity’’ by
adding at the end ‘‘United States
Transportation Command, Directorate of
Acquisition’’.
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
DEPARTMENT OF DEFENSE
252.212–7001
Defense Acquisition Regulations
System
[Amended]
3. Section 252.212–7001 is amended
as follows:
■ a. By revising the clause date to read
‘‘(SEP 2008)’’; and
■ b. In paragraph (b)(3) by removing
‘‘(APR 2007)’’ and adding in its place
‘‘(AUG 2008)’’.
■
48 CFR Parts 202 and 252
Defense Federal Acquisition
Regulation Supplement; Technical
Amendments
[FR Doc. E8–21375 Filed 9–12–08; 8:45 am]
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
BILLING CODE 5001–08–P
SUMMARY: DoD is making technical
amendments to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to update the list of DoD
contracting activities and to correct a
reference in a contract clause.
DATES: Effective Date: September 15,
2008.
Defense Acquisition Regulations
System
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AGENCY:
DEPARTMENT OF DEFENSE
48 CFR Parts 206, 225, and 252
RIN 0750–AG02
Ms.
Michele Peterson, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3D139, 3062
Defense Pentagon, Washington, DC
FOR FURTHER INFORMATION CONTACT:
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Defense Federal Acquisition
Regulation Supplement; Acquisitions
in Support of Operations in Iraq or
Afghanistan (DFARS Case 2008–D002)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
AGENCY:
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53151
Interim rule with request for
comments.
ACTION:
SUMMARY: DoD has issued an interim
rule amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement Sections 886 and
892 of the National Defense
Authorization Act for Fiscal Year 2008.
Section 886 provides authority for DoD
to limit competition when acquiring
products or services in support of
operations in Iraq or Afghanistan.
Section 892 addresses competition
requirements for the procurement of
small arms for assistance to Iraq or
Afghanistan.
DATES: Effective date: September 15,
2008.
Comment date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before November 14, 2008, to be
considered in the formation of the final
rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2008–D002,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Æ E-mail: dfars@osd.mil. Include
DFARS Case 2008–D002 in the subject
line of the message.
Æ Fax: 703–602–7887.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy
Williams, OUSD (AT&L) DPAP (DARS),
IMD 3D139, 3062 Defense Pentagon,
Washington, DC 20301–3062.
Æ 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:
A. Background
Section 886 of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181) provides authority for
DoD to limit competition when
acquiring products or services in
support of military operations or
stability operations in Iraq or
Afghanistan (including security,
transition, reconstruction, and
humanitarian relief activities) under
certain circumstances. In those
circumstances, and when the required
determination is made, Section 886
authorizes DoD to—
Æ Limit competition to products or
services from Iraq or Afghanistan;
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Æ Restrict an acquisition to a
particular source or sources from Iraq or
Afghanistan; or
Æ Provide a preference for products or
services from Iraq or Afghanistan.
House Conference Report 110–477
requires DoD to submit a semi-annual
report to the congressional defense
committees addressing the use of the
authority provided in Section 886
through the end of fiscal year 2009.
Section 892 of Public Law 110–181
applies to acquisitions of small arms for
assistance to the Army of Iraq or
Afghanistan, the Police Forces of Iraq or
Afghanistan, and other security
organizations of Iraq or Afghanistan. For
such acquisitions, Section 892 contains
requirements for DoD to ensure,
consistent with 10 U.S.C. 2304, that—
Æ Full and open competition is
obtained to the maximum extent
practicable;
Æ No responsible U.S. manufacturer
is excluded from competing for such
acquisitions; and
Æ Products manufactured in the
United States are not excluded from the
competition.
This interim rule includes—
Æ A new Subpart 225.77 to
implement the new statutory provisions.
Æ A new Trade Agreements
provision, and alternate paragraphs for
use with the existing Trade Agreements
clause, to remove the prohibition
against acceptance of Iraqi end products
that would otherwise apply to
acquisitions subject to the Trade
Agreements Act.
Æ A new solicitation provision and
contract clause to implement the
preference for Iraqi and Afghani
products authorized by Section 886. The
rule permits tailoring of the provision
and clause to provide a preference for
products of only Iraq or only
Afghanistan as appropriate.
Æ A new contract clause for use in
acquisitions conducted using the
authority of Section 886 to restrict an
acquisition to Iraqi or Afghani items or
sources.
Æ Direction that contracting officers
should not use Buy American Act/
Balance of Payments Program/Trade
Agreements provisions or clauses that
might otherwise apply if the acquisition
were not conducted using the authority
of Section 886.
Æ Direction that, for acquisitions
conducted using the authority of
Section 886, the justification and
approval addressed in FAR Subpart 6.3
is not required; DoD considers the
authority of Section 886 to operate
independently of the competition
requirements of 10 U.S.C. 2304.
However, the rule contains
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requirements for a written
determination to document the rationale
for the selected acquisition procedure,
in accordance with Section 886.
Æ Clarification that construction
contracts are included within the scope
of acquisitions that may be conducted
using the authority of Section 886,
consistent with the statutory intent of
providing a stable source of jobs and
employment in Iraq and Afghanistan.
Æ Exclusion of small arms from the
items that may be acquired using the
authority of Section 886, in view of the
specific requirement for competition in
the acquisition of small arms addressed
in Section 892 of Public Law 110–181.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because application of the rule is
limited to acquisitions in support of
operations in Iraq or Afghanistan.
Therefore, DoD has not performed an
initial regulatory flexibility analysis.
DoD invites comments from small
businesses and other interested parties.
DoD also will consider comments from
small entities concerning the affected
DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be
submitted separately and should cite
DFARS Case 2008–D002.
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
Sections 886 and 892 of the National
Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110–181). Section
886 provides special authority for use in
the acquisition of products or services
in support of operations in Iraq or
Afghanistan. Section 892 requires DoD
to ensure that competition is obtained to
the maximum extent practicable when
acquiring small arms for assistance to
Iraq or Afghanistan. Comments received
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in response to this interim rule will be
considered in the formation of the final
rule.
List of Subjects in 48 CFR Parts 206,
225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 206, 225, and
252 are amended as follows:
■ 1. The authority citation for 48 CFR
Parts 206, 225, and 252 continues to
read as follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 206—COMPETITION
REQUIREMENTS
2. Sections 206.303 and 206.303–70
are added to read as follows:
■
206.303
Justifications.
206.303–70 Acquisitions in support of
operations in Iraq or Afghanistan.
The justification and approval
addressed in FAR 6.303 is not required
for acquisitions conducted using a
procedure specified in 225.7703–1(a).
PART 225—FOREIGN ACQUISITION
3. Section 225.401–71 is added to read
as follows:
■
225.401–71 Products or services in
support of operations in Iraq or
Afghanistan.
When acquiring products or services,
other than small arms, in support of
operations in Iraq or Afghanistan using
a procedure specified in 225.7703–1(a),
the purchase restriction at FAR
25.403(c) does not apply with regard to
products or services from Iraq.
■ 4. Section 225.502 is amended by
revising paragraph (b)(i) and adding
paragraph (c)(iv) to read as follows:
225.502
Application.
(b) * * *
(i) Consider only offers of U.S.-made,
qualifying country, or designated
country end products, except as
permitted by 225.403 or 225.7703–1.
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(c) * * *
(iv) If the solicitation includes the
provision at 252.225–7023, Preference
for Products or Services from Iraq or
Afghanistan, use the evaluation
procedures at 225.7703–3.
■ 5. Section 225.1101 is amended as
follows:
■ a. In paragraph (2)(iii), by removing
‘‘or’’;
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b. In paragraph (2)(iv)(B), by removing
the period and adding in its place ‘‘; or’’;
■ c. By adding paragraph (2)(v);
■ d. By revising paragraphs (5) and (6);
■ e. By redesignating paragraphs (7)
through (10) as paragraphs (8) through
(11) respectively;
■ f. By adding a new paragraph (7);
■ g. In newly designated paragraph
(11)(ii)(A), by removing ‘‘or’’;
■ h. In newly designated paragraph
(11)(ii)(B), by removing the period at the
end and adding in its place ‘‘; or’’; and
■ i. By adding paragraph (11)(ii)(C) to
read as follows:
■
225.1101
Acquisition of supplies.
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(2) * * *
(v) All line items will be acquired
using a procedure specified in
225.7703–1(a).
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(5) Except as provided in paragraph
(7) of this section, use the provision at
252.225–7020, Trade Agreements
Certificate, instead of the provision at
FAR 52.225–6, Trade Agreements
Certificate, in solicitations that include
the clause at 252.225–7021, Trade
Agreements.
(6)(i) Use the clause at 252.225–7021,
Trade Agreements, instead of the clause
at FAR 52.225–5, Trade Agreements, if
the Trade Agreements Act applies.
(ii) Use the clause with its Alternate
I in solicitations and contracts that
include the clause at 252.225–7024,
Requirement for Products or Services
from Iraq or Afghanistan, unless the
clause at 252.225–7024 has been
modified to provide a preference only
for the products of Afghanistan.
(iii) Do not use the clause if—
(A) Purchase from foreign sources is
restricted, unless the contracting officer
anticipates a waiver of the restriction; or
(B) The clause at 252.225–7026,
Acquisition Restricted to Products or
Services from Iraq or Afghanistan, is
included in the solicitation and
contract.
(iv) The acquisition of eligible and
noneligible products under the same
contract may result in the application of
trade agreements to only some of the
items acquired. In such case, indicate in
the Schedule those items covered by the
Trade Agreements clause.
(7) Use the provision at 252.225–7022,
Trade Agreements Certificate—
Inclusion of Iraqi End Products, instead
of the provision at FAR 52.225–6, Trade
Agreements Certificate, in solicitations
that include the clause at 252.225–7021,
Trade Agreements, with its Alternate I.
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(11) * * *
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(ii) * * *
(C) Using a procedure specified in
225.7703–1(a).
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■ 6. Section 225.7501 is amended as
follows:
■ a. By redesignating paragraphs (a)(5)
and (6) as paragraphs (a)(6) and (7)
respectively; and
■ b. By adding a new paragraph (a)(5) to
read as follows:
225.7501
Policy.
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(a) * * *
(5) Use of a procedure specified in
225.7703–1(a) is authorized for an
acquisition in support of operations in
Iraq or Afghanistan;
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■ 7. Subpart 225.77 is added to read as
follows:
Subpart 225.77—Acquisitions in Support of
Operations in Iraq or Afghanistan
Sec.
225.7700 Scope.
225.7701 Definitions.
225.7702 Acquisition of small arms.
225.7703 Acquisition of products or
services other than small arms.
225.7703–1 Acquisition procedures.
225.7703–2 Determination requirements.
225.7703–3 Evaluating offers.
225.7703–4 Reporting requirement.
225.7703–5 Solicitation provisions and
contract clauses.
Subpart 225.77—Acquisitions in
Support of Operations in Iraq or
Afghanistan
225.7700
Scope.
This subpart implements Section 886
and Section 892 of the National Defense
Authorization Act for Fiscal Year 2008
(Public Law 110–181).
225.7701
Definitions.
As used in this subpart—
Product from Iraq or Afghanistan
means a product that is mined,
produced, or manufactured in Iraq or
Afghanistan.
Service from Iraq or Afghanistan
means a service that is performed in Iraq
or Afghanistan predominantly by
citizens or permanent resident aliens of
Iraq or Afghanistan.
Small arms means pistols and other
weapons less than 0.50 caliber.
Source from Iraq or Afghanistan
means a source that—
(1) Is located in Iraq or Afghanistan;
and
(2) Offers products or services from
Iraq or Afghanistan.
225.7702
Acquisition of small arms.
(a) Except as provided in paragraph
(b) of this section, when acquiring small
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53153
arms for assistance to the Army of Iraq,
the Army of Afghanistan, the Iraqi
Police Forces, the Afghani Police
Forces, or other Iraqi or Afghani security
organizations—
(1) Use full and open competition to
the maximum extent practicable,
consistent with the provisions of 10
U.S.C. 2304;
(2) If use of other than full and open
competition is justified in accordance
with FAR Subpart 6.3, ensure that—
(i) No responsible U.S. manufacturer
is excluded from competing for the
acquisition; and
(ii) Products manufactured in the
United States are not excluded from the
competition; and
(3) If the exception at FAR 6.302–2
(unusual and compelling urgency)
applies, do not exclude responsible U.S.
manufacturers or products
manufactured in the United States from
the competition for the purpose of
administrative expediency. However,
such an offer may be rejected if it does
not meet delivery schedule
requirements.
(b) Paragraph (a)(2) of this section
does not apply when—
(1) The exception at FAR 6.302–1
(only one or a limited number of
responsible sources) applies, and the
only responsible source or sources are
not U.S. manufacturers or are not
offering products manufactured in the
United States; or
(2) The exception at FAR 6.302–4
(international agreement) applies, and
United States manufacturers or products
manufactured in the United States are
not the source(s) specified in the written
directions of the foreign government
reimbursing the agency for the cost of
the acquisition of the property or
services for such government.
225.7703 Acquisition of products or
services other than small arms.
225.7703–1
Acquisition procedures.
(a) Subject to the requirements of
225.7703–2, a product or service
(including construction), other than
small arms, in support of operations in
Iraq or Afghanistan, may be acquired
by—
(1) Providing a preference for
products or services from Iraq or
Afghanistan in accordance with the
evaluation procedures at 225.7703–3;
(2) Limiting competition to products
or services from Iraq or Afghanistan; or
(3) Using procedures other than
competitive procedures to award a
contract to a particular source or sources
from Iraq or Afghanistan. When other
than competitive procedures are used,
the contracting officer shall document
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the contract file with the rationale for
selecting the particular source(s).
(b) For acquisitions conducted using a
procedure specified in paragraph (a) of
this subsection, the justification and
approval addressed in FAR Subpart 6.3
is not required.
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225.7703–2
Determination requirements.
Before use of a procedure specified in
225.7703–1(a), a written determination
must be prepared and executed as
follows:
(a) For products or services to be used
only by the military forces, police, or
other security personnel of Iraq or
Afghanistan, the contracting officer
shall—
(1) Determine in writing that the
product or service is to be used only by
the military forces, police, or other
security personnel of Iraq or
Afghanistan; and
(2) Include the written determination
in the contract file.
(b) For products or services not
limited to use by the military forces,
police, or other security personnel of
Iraq or Afghanistan, the following
requirements apply:
(1) The appropriate official specified
in paragraph (b)(2) of this subsection
must determine in writing that it is in
the national security interest of the
United States to use a procedure
specified in 225.7703–1(a), because—
(i) The procedure is necessary to
provide a stable source of jobs in Iraq or
Afghanistan; and
(ii) Use of the procedure will not
adversely affect—
(A) Operations in Iraq or Afghanistan
(including security, transition,
reconstruction, and humanitarian relief
activities); or
(B) The U.S. industrial base. The
authorizing official generally may
presume that there will not be an
adverse effect on the U.S. industrial
base. However, when in doubt, the
authorizing official should coordinate
with the applicable subject matter
expert specified in PGI 225.7703–2(b).
(2) Determinations may be made for
an individual acquisition or a class of
acquisitions meeting the criteria in
paragraph (b)(1) of this subsection as
follows:
(i) The head of the contacting activity
is authorized to make a determination
that applies to an individual acquisition
with a value of less than $78.5 million.
(ii) The Director, Defense
Procurement, Acquisition Policy, and
Strategic Sourcing, and the following
officials, without power of redelegation,
are authorized to make a determination
that applies to an individual acquisition
with a value of $78.5 million or more or
to a class of acquisitions:
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(A) Defense Logistics Agency
Component Acquisition Executive.
(B) Army Acquisition Executive.
(C) Navy Acquisition Executive.
(D) Air Force Acquisition Executive.
(3) The contracting officer—
(i) Shall include the applicable
written determination in the contract
file; and
(ii) Shall ensure that each contract
action taken pursuant to the authority of
a class determination is within the
scope of the class determination, and
shall document the contract file for each
action accordingly.
(c) See PGI 225.7703–2(c) for formats
for use in preparation of the
determinations required by this
subsection.
225.7703–3
Evaluating offers.
(a) Evaluate offers submitted in
response to solicitations that include the
provision at 252.225–7023, Preference
for Products or Services from Iraq or
Afghanistan, as follows:
(1) If the low offer is an offer of a
product or service from Iraq or
Afghanistan, award on that offer.
(2) If there are no offers of a product
or service from Iraq or Afghanistan,
award on the low offer.
(3) Otherwise, apply the evaluation
factor specified in the solicitation to the
low offer.
(i) If the price of the low offer of a
product or service from Iraq or
Afghanistan is less than the evaluated
price of the low offer, award on the low
offer of a product or service from Iraq
or Afghanistan.
(ii) If the evaluated price of the low
offer remains less than the low offer of
a product or service from Iraq or
Afghanistan, award on the low offer.
(b) If the provision at 252.225–7023 is
modified to provide a preference
exclusively for products or services
from Iraq or Afghanistan, also modify
the evaluation procedures in paragraph
(a) of this subsection to remove ‘‘or
Afghanistan’’ or ‘‘Iraq or’’, respectively,
wherever the phrase appears.
225.7703–4
Reporting requirement.
The following organizations shall
submit periodic reports to the Deputy
Director, Program Acquisition and
Contingency Contracting, Defense
Procurement, Acquisition Policy, and
Strategic Sourcing, in accordance with
PGI 225.7703–4, to address the
organization’s use of the procedures
authorized by this section:
(a) The Joint Contracting Command
(Iraq/Afghanistan).
(b) The Department of the Army,
except for contract actions reported by
the Joint Contracting Command.
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(c) The Department of the Navy.
(d) The Department of the Air Force.
(e) The Defense Logistics Agency.
(f) The other defense agencies and
other DoD components that execute
reportable contract actions.
225.7703–5 Solicitation provisions and
contract clauses.
(a) Use the provision at 252.225–7023,
Preference for Products or Services from
Iraq or Afghanistan, in solicitations that
provide a preference for products or
services from Iraq or Afghanistan in
accordance with 225.7703–1(a)(1). The
contracting officer—
(1) May modify the provision to
provide a preference exclusively for
products or services from Iraq or
exclusively for products or services
from Afghanistan by removing ‘‘or
Afghanistan’’ or ‘‘Iraq or’’, respectively,
wherever the phrase appears in the
provision. If this provision is so
modified, the clause at 252.225–7024
shall be modified accordingly; and
(2) May modify the 50 percent
evaluation factor in accordance with
contracting office procedures.
(b) Use the clause at 252.225–7024,
Requirement for Products or Services
from Iraq or Afghanistan, in solicitations
that include the provision at 252.225–
7023, Preference for Products or
Services from Iraq or Afghanistan, and
in the resulting contract. If the provision
at 252.225–7023 has been modified to
provide a preference exclusively for Iraq
or exclusively for Afghanistan, in
accordance with paragraph (a)(1) of this
subsection, the clause at 252.225–7024
shall be modified accordingly.
(c)(1) Use the clause at 252.225–7026,
Acquisition Restricted to Products or
Services from Iraq or Afghanistan, in
solicitations and contracts that—
(i) Are restricted to the acquisition of
products or services from Iraq or
Afghanistan in accordance with
225.7703–1(a)(2); or
(ii) Will be directed to a particular
source or sources from Iraq or
Afghanistan in accordance with
225.7703–1(a)(3).
(2) The contracting officer may
modify the clause to restrict the
acquisition to products or services from
Iraq, or to restrict the acquisition to
products or services from Afghanistan,
by removing ‘‘or Afghanistan’’ or ‘‘Iraq
or’’, respectively, wherever the phrase
appears in the clause.
(d) When the Trade Agreements Act
applies to the acquisition, use the
appropriate clause and provision as
prescribed at 225.1101(6) and (7).
(e) Do not use any of the following
provisions or clauses in solicitations or
contracts that include the provision at
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252.225–7023, the clause at 252.225–
7024, or the clause at 252.225–7026:
(1) 252.225–7000, Buy American
Act—Balance of Payments Program
Certificate.
(2) 252.225–7001, Buy American Act
and Balance of Payments Program.
(3) 252.225–7002, Qualifying Country
Sources as Subcontractors.
(4) 252.225–7020, Trade Agreements
Certificate.
(5) 252.225–7035, Buy American
Act—Free Trade Agreements—Balance
of Payments Program Certificate.
(6) 252.225–7036, Buy American
Act—Free Trade Agreements—Balance
of Payments Program.
(7) 252.225–7044, Balance of
Payments Program—Construction
Material.
(8) 252.225–7045, Balance of
Payments Program—Construction
Material Under Trade Agreements.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
8. Section 252.225–7021 is amended
by adding Alternate I to read as follows:
■
252.225–7021
*
*
*
Trade Agreements.
*
*
jlentini on PROD1PC65 with RULES
Alternate I (SEP 2008)
As prescribed in 225.1101(6)(ii), add the
following paragraph (a)(14) to the basic
clause and substitute the following paragraph
(c) for paragraph (c) of the basic clause:
(a)(14) Iraqi end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Iraq; or
(ii) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in Iraq into a new and different article of
commerce with a name, character, or use
distinct from that of the article or articles
from which it was transformed. The term
refers to a product offered for purchase under
a supply contract, but for purposes of
calculating the value of the end product
includes services (except transportation
services) incidental to its supply, provided
that the value of those incidental services
does not exceed the value of the product
itself.
(c) The Contractor shall deliver under this
contract only U.S.-made, qualifying country,
Iraqi, or designated country end products
unless—
(1) In its offer, the Contractor specified
delivery of other nondesignated country end
products in the Trade Agreements Certificate
provision of the solicitation; and
(2)(i) Offers of U.S.-made, qualifying
country, Iraqi, or designated country end
products from responsive, responsible
offerors are either not received or are
insufficient to fill the Government’s
requirements; or
(ii) A national interest waiver has been
granted.
VerDate Aug<31>2005
17:47 Sep 12, 2008
Jkt 214001
9. Sections 252.225–7022 through
252.225–7024 are added to read as
follows:
■
252.225–7022 Trade Agreements
Certificate—Inclusion of Iraqi End Products.
As prescribed in 225.1101(7), use the
following provision:
TRADE AGREEMENTS
CERTIFICATE—INCLUSION OF IRAQI
END PRODUCTS (SEP 2008)
(a) Definitions. Designated country end
product, Iraqi end product, nondesignated
country end product, qualifying country end
product, and U.S.-made end product have
the meanings given in the Trade Agreements
clause of this solicitation.
(b) Evaluation. The Government—
(1) Will evaluate offers in accordance with
the policies and procedures of Part 225 of the
Defense Federal Acquisition Regulation
Supplement; and
(2) Will consider only offers of end
products that are U.S.-made, qualifying
country, Iraqi, or designated country end
products unless—
(i) There are no offers of such end
products;
(ii) The offers of such end products are
insufficient to fulfill the Government’s
requirements; or
(iii) A national interest waiver has been
granted.
(c) Certification and identification of
country of origin.
(1) For all line items subject to the Trade
Agreements clause of this solicitation, the
offeror certifies that each end product to be
delivered under a contract resulting from this
solicitation, except those listed in paragraph
(c)(2) of this provision, is a U.S.-made,
qualifying country, Iraqi, or designated
country end product.
(2) The following supplies are other
nondesignated country end products:
(Country of Origin)
(Line Item Number)
(End of provision)
252.225–7023 Preference for Products or
Services from Iraq or Afghanistan.
As prescribed in 225.7703–5(a), use
the following provision:
PREFERENCE FOR PRODUCTS OR
SERVICES FROM IRAQ OR
AFGHANISTAN (SEP 2008)
(a) Definitions. Product from Iraq or
Afghanistan and service from Iraq or
Afghanistan, as used in this provision, are
defined in the clause of this solicitation
entitled ‘‘Requirement for Products or
Services from Iraq or Afghanistan’’ (DFARS
252.225–7024).
(b) Representation. The offeror represents
that all products or services to be delivered
under a contract resulting from this
solicitation are products from Iraq or
Afghanistan or services from Iraq or
Afghanistan, except those listed in—
(1) Paragraph (c) of this provision; or
(2) Paragraph (c)(2) of the provision
entitled ‘‘Trade Agreements Certificate—
PO 00000
Frm 00051
Fmt 4700
Sfmt 4700
53155
Inclusion of Iraqi End Products,’’ if included
in this solicitation.
(c) Other products or services. The
following offered products or services are not
products from Iraq or Afghanistan or services
from Iraq or Afghanistan:
(Country of Origin)
(Line Item Number)
(d) Evaluation. For the purpose of
evaluating competitive offers, the Contracting
Officer will increase by 50 percent the prices
of offers of products or services that are not
products or services from Iraq or
Afghanistan.
(End of provision)
252.225–7024 Requirement for Products or
Services from Iraq or Afghanistan.
As prescribed in 225.7703–5(b), use
the following clause:
REQUIREMENT FOR PRODUCTS OR
SERVICES FROM IRAQ OR
AFGHANISTAN (SEP 2008)
(a) Definitions. As used in this clause—
(1) Product from Iraq or Afghanistan means
a product that is mined, produced, or
manufactured in Iraq or Afghanistan.
(2) Service from Iraq or Afghanistan means
a service that is performed in Iraq or
Afghanistan predominantly by citizens or
permanent resident aliens of Iraq or
Afghanistan.
(b) The Contractor shall provide only
products from Iraq or Afghanistan or services
from Iraq or Afghanistan under this contract,
unless, in its offer, it specified that it would
provide products or services other than
products from Iraq or Afghanistan or services
from Iraq or Afghanistan.
(End of clause)
10. Section 252.225–7026 is added to
read as follows:
■
252.225–7026 Acquisition Restricted to
Products or Services from Iraq or
Afghanistan.
As prescribed in 225.7703–5(c), use
the following clause:
ACQUISITION RESTRICTED TO
PRODUCTS OR SERVICES FROM
IRAQ OR AFGHANISTAN (SEP 2008)
(a) Definitions. As used in this clause—
(1) Product from Iraq or Afghanistan means
a product that is mined, produced, or
manufactured in Iraq or Afghanistan.
(2) Service from Iraq or Afghanistan means
a service that is performed in Iraq or
Afghanistan predominantly by citizens or
permanent resident aliens of Iraq or
Afghanistan.
(b) The Contractor shall provide only
products from Iraq or Afghanistan or services
from Iraq or Afghanistan under this contract.
(End of clause)
252.225–7032
[Amended]
11. Section 252.225–7032 is amended
in the introductory text by removing
‘‘225.1101(7)’’ and adding in its place
‘‘225.1101(8)’’.
■
E:\FR\FM\15SER1.SGM
15SER1
53156
Federal Register / Vol. 73, No. 179 / Monday, September 15, 2008 / Rules and Regulations
252.225–7033
[Amended]
12. Section 252.225–7033 is amended
in the introductory text by removing
‘‘225.1101(8)’’ and adding in its place
‘‘225.1101(9)’’.
■
252.225–7035
[Amended]
13. Section 252.225–7035 is amended
in the introductory text and in Alternate
I by removing ‘‘225.1101(9)’’ and adding
in its place ‘‘225.1101(10)’’.
■
252.225–7036
[Amended]
14. Section 252.225–7036 is amended
in the introductory text and in Alternate
I by removing ‘‘225.1101(10)’’ and
adding in its place ‘‘225.1101(11)’’.
■
[FR Doc. E8–21376 Filed 9–12–08; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
B. Regulatory Flexibility Act
Defense Acquisition Regulations
System
48 CFR Part 237
RIN 0750–AG04
Defense Federal Acquisition
Regulation Supplement; Limitation on
Service Contracts for Military Flight
Simulators (DFARS Case 2008–D013)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement Section 883(b) of
the National Defense Authorization Act
for Fiscal Year 2008. Section 883(b)
changed the conditions under which
DoD may waive the prohibition on
entering into a service contract to
acquire a military flight simulator.
DATES: Effective Date: September 15,
2008.
FOR FURTHER INFORMATION CONTACT: Mr.
Mark Gomersall, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3D139, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone 703–602–0302;
facsimile 703–602–7887. Please cite
DFARS Case 2008–D013.
SUPPLEMENTARY INFORMATION:
jlentini on PROD1PC65 with RULES
A. Background
Section 832 of the National Defense
Authorization Act for Fiscal Year 2007
(Pub. L. 109–364) established a
prohibition on the award of a DoD
service contract for the acquisition of a
military flight simulator, unless the
17:00 Sep 12, 2008
Jkt 214001
This rule will not have a significant
cost or administrative impact on
contractors or offerors, or a significant
effect beyond the internal operating
procedures of DoD. Therefore,
publication for public comment under
41 U.S.C. 418b is not required.
However, DoD will consider comments
from small entities concerning the
affected DFARS subpart in accordance
with 5 U.S.C. 610. Such comments
should cite DFARS Case 2008–D013.
C. Paperwork Reduction Act
SUMMARY:
VerDate Aug<31>2005
Secretary of Defense determines that a
waiver is necessary for national security
purposes and provides an economic
analysis to the congressional defense
committees. This prohibition and the
waiver authority are implemented at
DFARS 237.102–71.
Section 883(b) of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181) amended the
conditions for waiver in Section 832 of
Public Law 109–364 by replacing
‘‘necessary for national security
purposes’’ with ‘‘in the national
interest’’. This final rule amends DFARS
237.102–71 to reflect the change made
by Section 883(b) of Public Law 110–
181.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
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 237
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 237 is
amended as follows:
■
PART 237—SERVICE CONTRACTING
1. The authority citation for 48 CFR
part 237 continues to read as follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
2. Section 237.102–71 is amended by
revising paragraph (b) introductory text
and paragraph (b)(1) to read as follows:
■
237.102–71 Limitation on service
contracts for military flight simulators.
*
*
*
*
*
(b) Under Section 832 of Public Law
109–364, as amended by Section 883(b)
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Frm 00052
Fmt 4700
Sfmt 4700
of Public Law 110–181, DoD is
prohibited from entering into a service
contract to acquire a military flight
simulator. However, the Secretary of
Defense may waive this prohibition
with respect to a contract, if the
Secretary—
(1) Determines that a waiver is in the
national interest; and
*
*
*
*
*
[FR Doc. E8–21374 Filed 9–12–08; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 237
RIN 0750–AF64
Defense Federal Acquisition
Regulation Supplement; SecurityGuard Functions (DFARS Case 2006–
D050)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule with request for
comments.
AGENCY:
SUMMARY: DoD has issued an interim
rule amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement Section 343 of
the National Defense Authorization Act
for Fiscal Year 2008. Section 343
extends, through September 30, 2012,
the period during which contractor
performance of security-guard functions
at military installations or facilities is
authorized to fulfill additional
requirements resulting from the terrorist
attacks on the United States on
September 11, 2001.
DATES: Effective date: September 15,
2008.
Comment date: Comments on the
interim rule should be submitted to the
address shown below on or before
November 14, 2008, to be considered in
the formation of the final rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2006–D050,
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–D050 in the subject
line of the message.
• Fax: 703–602–7887.
• Mail: Defense Acquisition
Regulations System, Attn: Mr. Michael
Benavides, OUSD (AT&L) DPAP
(DARS), IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301–3062.
E:\FR\FM\15SER1.SGM
15SER1
]]>Agencies
[Federal Register Volume 73, Number 179 (Monday, September 15, 2008)]
[Rules and Regulations]
[Pages 53151-53156]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21376]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 206, 225, and 252
RIN 0750-AG02
Defense Federal Acquisition Regulation Supplement; Acquisitions
in Support of Operations in Iraq or Afghanistan (DFARS Case 2008-D002)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DoD has issued an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement Sections 886 and
892 of the National Defense Authorization Act for Fiscal Year 2008.
Section 886 provides authority for DoD to limit competition when
acquiring products or services in support of operations in Iraq or
Afghanistan. Section 892 addresses competition requirements for the
procurement of small arms for assistance to Iraq or Afghanistan.
DATES: Effective date: September 15, 2008.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before November 14, 2008, to
be considered in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2008-D002,
using any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: dfars@osd.mil. Include DFARS Case 2008-D002 in the
subject line of the message.
[cir] Fax: 703-602-7887.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon,
Washington, DC 20301-3062.
[cir] 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 http:/
/www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, 703-602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
Section 886 of the National Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110-181) provides authority for DoD to limit
competition when acquiring products or services in support of military
operations or stability operations in Iraq or Afghanistan (including
security, transition, reconstruction, and humanitarian relief
activities) under certain circumstances. In those circumstances, and
when the required determination is made, Section 886 authorizes DoD
to--
[cir] Limit competition to products or services from Iraq or
Afghanistan;
[[Page 53152]]
[cir] Restrict an acquisition to a particular source or sources
from Iraq or Afghanistan; or
[cir] Provide a preference for products or services from Iraq or
Afghanistan.
House Conference Report 110-477 requires DoD to submit a semi-
annual report to the congressional defense committees addressing the
use of the authority provided in Section 886 through the end of fiscal
year 2009.
Section 892 of Public Law 110-181 applies to acquisitions of small
arms for assistance to the Army of Iraq or Afghanistan, the Police
Forces of Iraq or Afghanistan, and other security organizations of Iraq
or Afghanistan. For such acquisitions, Section 892 contains
requirements for DoD to ensure, consistent with 10 U.S.C. 2304, that--
[cir] Full and open competition is obtained to the maximum extent
practicable;
[cir] No responsible U.S. manufacturer is excluded from competing
for such acquisitions; and
[cir] Products manufactured in the United States are not excluded
from the competition.
This interim rule includes--
[cir] A new Subpart 225.77 to implement the new statutory
provisions.
[cir] A new Trade Agreements provision, and alternate paragraphs
for use with the existing Trade Agreements clause, to remove the
prohibition against acceptance of Iraqi end products that would
otherwise apply to acquisitions subject to the Trade Agreements Act.
[cir] A new solicitation provision and contract clause to implement
the preference for Iraqi and Afghani products authorized by Section
886. The rule permits tailoring of the provision and clause to provide
a preference for products of only Iraq or only Afghanistan as
appropriate.
[cir] A new contract clause for use in acquisitions conducted using
the authority of Section 886 to restrict an acquisition to Iraqi or
Afghani items or sources.
[cir] Direction that contracting officers should not use Buy
American Act/Balance of Payments Program/Trade Agreements provisions or
clauses that might otherwise apply if the acquisition were not
conducted using the authority of Section 886.
[cir] Direction that, for acquisitions conducted using the
authority of Section 886, the justification and approval addressed in
FAR Subpart 6.3 is not required; DoD considers the authority of Section
886 to operate independently of the competition requirements of 10
U.S.C. 2304. However, the rule contains requirements for a written
determination to document the rationale for the selected acquisition
procedure, in accordance with Section 886.
[cir] Clarification that construction contracts are included within
the scope of acquisitions that may be conducted using the authority of
Section 886, consistent with the statutory intent of providing a stable
source of jobs and employment in Iraq and Afghanistan.
[cir] Exclusion of small arms from the items that may be acquired
using the authority of Section 886, in view of the specific requirement
for competition in the acquisition of small arms addressed in Section
892 of Public Law 110-181.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because application
of the rule is limited to acquisitions in support of operations in Iraq
or Afghanistan. Therefore, DoD has not performed an initial regulatory
flexibility analysis. DoD invites comments from small businesses and
other interested parties. DoD also will consider comments from small
entities concerning the affected DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be submitted separately and should
cite DFARS Case 2008-D002.
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 Sections 886 and 892 of the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
Section 886 provides special authority for use in the acquisition of
products or services in support of operations in Iraq or Afghanistan.
Section 892 requires DoD to ensure that competition is obtained to the
maximum extent practicable when acquiring small arms for assistance to
Iraq or Afghanistan. Comments received in response to this interim rule
will be considered in the formation of the final rule.
List of Subjects in 48 CFR Parts 206, 225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 206, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR Parts 206, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 206--COMPETITION REQUIREMENTS
0
2. Sections 206.303 and 206.303-70 are added to read as follows:
206.303 Justifications.
206.303-70 Acquisitions in support of operations in Iraq or
Afghanistan.
The justification and approval addressed in FAR 6.303 is not
required for acquisitions conducted using a procedure specified in
225.7703-1(a).
PART 225--FOREIGN ACQUISITION
0
3. Section 225.401-71 is added to read as follows:
225.401-71 Products or services in support of operations in Iraq or
Afghanistan.
When acquiring products or services, other than small arms, in
support of operations in Iraq or Afghanistan using a procedure
specified in 225.7703-1(a), the purchase restriction at FAR 25.403(c)
does not apply with regard to products or services from Iraq.
0
4. Section 225.502 is amended by revising paragraph (b)(i) and adding
paragraph (c)(iv) to read as follows:
225.502 Application.
(b) * * *
(i) Consider only offers of U.S.-made, qualifying country, or
designated country end products, except as permitted by 225.403 or
225.7703-1.
* * * * *
(c) * * *
(iv) If the solicitation includes the provision at 252.225-7023,
Preference for Products or Services from Iraq or Afghanistan, use the
evaluation procedures at 225.7703-3.
0
5. Section 225.1101 is amended as follows:
0
a. In paragraph (2)(iii), by removing ``or'';
[[Page 53153]]
0
b. In paragraph (2)(iv)(B), by removing the period and adding in its
place ``; or'';
0
c. By adding paragraph (2)(v);
0
d. By revising paragraphs (5) and (6);
0
e. By redesignating paragraphs (7) through (10) as paragraphs (8)
through (11) respectively;
0
f. By adding a new paragraph (7);
0
g. In newly designated paragraph (11)(ii)(A), by removing ``or'';
0
h. In newly designated paragraph (11)(ii)(B), by removing the period at
the end and adding in its place ``; or''; and
0
i. By adding paragraph (11)(ii)(C) to read as follows:
225.1101 Acquisition of supplies.
* * * * *
(2) * * *
(v) All line items will be acquired using a procedure specified in
225.7703-1(a).
* * * * *
(5) Except as provided in paragraph (7) of this section, use the
provision at 252.225-7020, Trade Agreements Certificate, instead of the
provision at FAR 52.225-6, Trade Agreements Certificate, in
solicitations that include the clause at 252.225-7021, Trade
Agreements.
(6)(i) Use the clause at 252.225-7021, Trade Agreements, instead of
the clause at FAR 52.225-5, Trade Agreements, if the Trade Agreements
Act applies.
(ii) Use the clause with its Alternate I in solicitations and
contracts that include the clause at 252.225-7024, Requirement for
Products or Services from Iraq or Afghanistan, unless the clause at
252.225-7024 has been modified to provide a preference only for the
products of Afghanistan.
(iii) Do not use the clause if--
(A) Purchase from foreign sources is restricted, unless the
contracting officer anticipates a waiver of the restriction; or
(B) The clause at 252.225-7026, Acquisition Restricted to Products
or Services from Iraq or Afghanistan, is included in the solicitation
and contract.
(iv) The acquisition of eligible and noneligible products under the
same contract may result in the application of trade agreements to only
some of the items acquired. In such case, indicate in the Schedule
those items covered by the Trade Agreements clause.
(7) Use the provision at 252.225-7022, Trade Agreements
Certificate--Inclusion of Iraqi End Products, instead of the provision
at FAR 52.225-6, Trade Agreements Certificate, in solicitations that
include the clause at 252.225-7021, Trade Agreements, with its
Alternate I.
* * * * *
(11) * * *
(ii) * * *
(C) Using a procedure specified in 225.7703-1(a).
* * * * *
0
6. Section 225.7501 is amended as follows:
0
a. By redesignating paragraphs (a)(5) and (6) as paragraphs (a)(6) and
(7) respectively; and
0
b. By adding a new paragraph (a)(5) to read as follows:
225.7501 Policy.
* * * * *
(a) * * *
(5) Use of a procedure specified in 225.7703-1(a) is authorized for
an acquisition in support of operations in Iraq or Afghanistan;
* * * * *
0
7. Subpart 225.77 is added to read as follows:
Subpart 225.77--Acquisitions in Support of Operations in Iraq or
Afghanistan
Sec.
225.7700 Scope.
225.7701 Definitions.
225.7702 Acquisition of small arms.
225.7703 Acquisition of products or services other than small arms.
225.7703-1 Acquisition procedures.
225.7703-2 Determination requirements.
225.7703-3 Evaluating offers.
225.7703-4 Reporting requirement.
225.7703-5 Solicitation provisions and contract clauses.
Subpart 225.77--Acquisitions in Support of Operations in Iraq or
Afghanistan
225.7700 Scope.
This subpart implements Section 886 and Section 892 of the National
Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181).
225.7701 Definitions.
As used in this subpart--
Product from Iraq or Afghanistan means a product that is mined,
produced, or manufactured in Iraq or Afghanistan.
Service from Iraq or Afghanistan means a service that is performed
in Iraq or Afghanistan predominantly by citizens or permanent resident
aliens of Iraq or Afghanistan.
Small arms means pistols and other weapons less than 0.50 caliber.
Source from Iraq or Afghanistan means a source that--
(1) Is located in Iraq or Afghanistan; and
(2) Offers products or services from Iraq or Afghanistan.
225.7702 Acquisition of small arms.
(a) Except as provided in paragraph (b) of this section, when
acquiring small arms for assistance to the Army of Iraq, the Army of
Afghanistan, the Iraqi Police Forces, the Afghani Police Forces, or
other Iraqi or Afghani security organizations--
(1) Use full and open competition to the maximum extent
practicable, consistent with the provisions of 10 U.S.C. 2304;
(2) If use of other than full and open competition is justified in
accordance with FAR Subpart 6.3, ensure that--
(i) No responsible U.S. manufacturer is excluded from competing for
the acquisition; and
(ii) Products manufactured in the United States are not excluded
from the competition; and
(3) If the exception at FAR 6.302-2 (unusual and compelling
urgency) applies, do not exclude responsible U.S. manufacturers or
products manufactured in the United States from the competition for the
purpose of administrative expediency. However, such an offer may be
rejected if it does not meet delivery schedule requirements.
(b) Paragraph (a)(2) of this section does not apply when--
(1) The exception at FAR 6.302-1 (only one or a limited number of
responsible sources) applies, and the only responsible source or
sources are not U.S. manufacturers or are not offering products
manufactured in the United States; or
(2) The exception at FAR 6.302-4 (international agreement) applies,
and United States manufacturers or products manufactured in the United
States are not the source(s) specified in the written directions of the
foreign government reimbursing the agency for the cost of the
acquisition of the property or services for such government.
225.7703 Acquisition of products or services other than small arms.
225.7703-1 Acquisition procedures.
(a) Subject to the requirements of 225.7703-2, a product or service
(including construction), other than small arms, in support of
operations in Iraq or Afghanistan, may be acquired by--
(1) Providing a preference for products or services from Iraq or
Afghanistan in accordance with the evaluation procedures at 225.7703-3;
(2) Limiting competition to products or services from Iraq or
Afghanistan; or
(3) Using procedures other than competitive procedures to award a
contract to a particular source or sources from Iraq or Afghanistan.
When other than competitive procedures are used, the contracting
officer shall document
[[Page 53154]]
the contract file with the rationale for selecting the particular
source(s).
(b) For acquisitions conducted using a procedure specified in
paragraph (a) of this subsection, the justification and approval
addressed in FAR Subpart 6.3 is not required.
225.7703-2 Determination requirements.
Before use of a procedure specified in 225.7703-1(a), a written
determination must be prepared and executed as follows:
(a) For products or services to be used only by the military
forces, police, or other security personnel of Iraq or Afghanistan, the
contracting officer shall--
(1) Determine in writing that the product or service is to be used
only by the military forces, police, or other security personnel of
Iraq or Afghanistan; and
(2) Include the written determination in the contract file.
(b) For products or services not limited to use by the military
forces, police, or other security personnel of Iraq or Afghanistan, the
following requirements apply:
(1) The appropriate official specified in paragraph (b)(2) of this
subsection must determine in writing that it is in the national
security interest of the United States to use a procedure specified in
225.7703-1(a), because--
(i) The procedure is necessary to provide a stable source of jobs
in Iraq or Afghanistan; and
(ii) Use of the procedure will not adversely affect--
(A) Operations in Iraq or Afghanistan (including security,
transition, reconstruction, and humanitarian relief activities); or
(B) The U.S. industrial base. The authorizing official generally
may presume that there will not be an adverse effect on the U.S.
industrial base. However, when in doubt, the authorizing official
should coordinate with the applicable subject matter expert specified
in PGI 225.7703-2(b).
(2) Determinations may be made for an individual acquisition or a
class of acquisitions meeting the criteria in paragraph (b)(1) of this
subsection as follows:
(i) The head of the contacting activity is authorized to make a
determination that applies to an individual acquisition with a value of
less than $78.5 million.
(ii) The Director, Defense Procurement, Acquisition Policy, and
Strategic Sourcing, and the following officials, without power of
redelegation, are authorized to make a determination that applies to an
individual acquisition with a value of $78.5 million or more or to a
class of acquisitions:
(A) Defense Logistics Agency Component Acquisition Executive.
(B) Army Acquisition Executive.
(C) Navy Acquisition Executive.
(D) Air Force Acquisition Executive.
(3) The contracting officer--
(i) Shall include the applicable written determination in the
contract file; and
(ii) Shall ensure that each contract action taken pursuant to the
authority of a class determination is within the scope of the class
determination, and shall document the contract file for each action
accordingly.
(c) See PGI 225.7703-2(c) for formats for use in preparation of the
determinations required by this subsection.
225.7703-3 Evaluating offers.
(a) Evaluate offers submitted in response to solicitations that
include the provision at 252.225-7023, Preference for Products or
Services from Iraq or Afghanistan, as follows:
(1) If the low offer is an offer of a product or service from Iraq
or Afghanistan, award on that offer.
(2) If there are no offers of a product or service from Iraq or
Afghanistan, award on the low offer.
(3) Otherwise, apply the evaluation factor specified in the
solicitation to the low offer.
(i) If the price of the low offer of a product or service from Iraq
or Afghanistan is less than the evaluated price of the low offer, award
on the low offer of a product or service from Iraq or Afghanistan.
(ii) If the evaluated price of the low offer remains less than the
low offer of a product or service from Iraq or Afghanistan, award on
the low offer.
(b) If the provision at 252.225-7023 is modified to provide a
preference exclusively for products or services from Iraq or
Afghanistan, also modify the evaluation procedures in paragraph (a) of
this subsection to remove ``or Afghanistan'' or ``Iraq or'',
respectively, wherever the phrase appears.
225.7703-4 Reporting requirement.
The following organizations shall submit periodic reports to the
Deputy Director, Program Acquisition and Contingency Contracting,
Defense Procurement, Acquisition Policy, and Strategic Sourcing, in
accordance with PGI 225.7703-4, to address the organization's use of
the procedures authorized by this section:
(a) The Joint Contracting Command (Iraq/Afghanistan).
(b) The Department of the Army, except for contract actions
reported by the Joint Contracting Command.
(c) The Department of the Navy.
(d) The Department of the Air Force.
(e) The Defense Logistics Agency.
(f) The other defense agencies and other DoD components that
execute reportable contract actions.
225.7703-5 Solicitation provisions and contract clauses.
(a) Use the provision at 252.225-7023, Preference for Products or
Services from Iraq or Afghanistan, in solicitations that provide a
preference for products or services from Iraq or Afghanistan in
accordance with 225.7703-1(a)(1). The contracting officer--
(1) May modify the provision to provide a preference exclusively
for products or services from Iraq or exclusively for products or
services from Afghanistan by removing ``or Afghanistan'' or ``Iraq
or'', respectively, wherever the phrase appears in the provision. If
this provision is so modified, the clause at 252.225-7024 shall be
modified accordingly; and
(2) May modify the 50 percent evaluation factor in accordance with
contracting office procedures.
(b) Use the clause at 252.225-7024, Requirement for Products or
Services from Iraq or Afghanistan, in solicitations that include the
provision at 252.225-7023, Preference for Products or Services from
Iraq or Afghanistan, and in the resulting contract. If the provision at
252.225-7023 has been modified to provide a preference exclusively for
Iraq or exclusively for Afghanistan, in accordance with paragraph
(a)(1) of this subsection, the clause at 252.225-7024 shall be modified
accordingly.
(c)(1) Use the clause at 252.225-7026, Acquisition Restricted to
Products or Services from Iraq or Afghanistan, in solicitations and
contracts that--
(i) Are restricted to the acquisition of products or services from
Iraq or Afghanistan in accordance with 225.7703-1(a)(2); or
(ii) Will be directed to a particular source or sources from Iraq
or Afghanistan in accordance with 225.7703-1(a)(3).
(2) The contracting officer may modify the clause to restrict the
acquisition to products or services from Iraq, or to restrict the
acquisition to products or services from Afghanistan, by removing ``or
Afghanistan'' or ``Iraq or'', respectively, wherever the phrase appears
in the clause.
(d) When the Trade Agreements Act applies to the acquisition, use
the appropriate clause and provision as prescribed at 225.1101(6) and
(7).
(e) Do not use any of the following provisions or clauses in
solicitations or contracts that include the provision at
[[Page 53155]]
252.225-7023, the clause at 252.225-7024, or the clause at 252.225-
7026:
(1) 252.225-7000, Buy American Act--Balance of Payments Program
Certificate.
(2) 252.225-7001, Buy American Act and Balance of Payments Program.
(3) 252.225-7002, Qualifying Country Sources as Subcontractors.
(4) 252.225-7020, Trade Agreements Certificate.
(5) 252.225-7035, Buy American Act--Free Trade Agreements--Balance
of Payments Program Certificate.
(6) 252.225-7036, Buy American Act--Free Trade Agreements--Balance
of Payments Program.
(7) 252.225-7044, Balance of Payments Program--Construction
Material.
(8) 252.225-7045, Balance of Payments Program--Construction
Material Under Trade Agreements.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
8. Section 252.225-7021 is amended by adding Alternate I to read as
follows:
252.225-7021 Trade Agreements.
* * * * *
Alternate I (SEP 2008)
As prescribed in 225.1101(6)(ii), add the following paragraph
(a)(14) to the basic clause and substitute the following paragraph
(c) for paragraph (c) of the basic clause:
(a)(14) Iraqi end product means an article that--
(i) Is wholly the growth, product, or manufacture of Iraq; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Iraq into a new and different article of commerce
with a name, character, or use distinct from that of the article or
articles from which it was transformed. The term refers to a product
offered for purchase under a supply contract, but for purposes of
calculating the value of the end product includes services (except
transportation services) incidental to its supply, provided that the
value of those incidental services does not exceed the value of the
product itself.
(c) The Contractor shall deliver under this contract only U.S.-
made, qualifying country, Iraqi, or designated country end products
unless--
(1) In its offer, the Contractor specified delivery of other
nondesignated country end products in the Trade Agreements
Certificate provision of the solicitation; and
(2)(i) Offers of U.S.-made, qualifying country, Iraqi, or
designated country end products from responsive, responsible
offerors are either not received or are insufficient to fill the
Government's requirements; or
(ii) A national interest waiver has been granted.
0
9. Sections 252.225-7022 through 252.225-7024 are added to read as
follows:
252.225-7022 Trade Agreements Certificate--Inclusion of Iraqi End
Products.
As prescribed in 225.1101(7), use the following provision:
TRADE AGREEMENTS CERTIFICATE--INCLUSION OF IRAQI END PRODUCTS (SEP
2008)
(a) Definitions. Designated country end product, Iraqi end
product, nondesignated country end product, qualifying country end
product, and U.S.-made end product have the meanings given in the
Trade Agreements clause of this solicitation.
(b) Evaluation. The Government--
(1) Will evaluate offers in accordance with the policies and
procedures of Part 225 of the Defense Federal Acquisition Regulation
Supplement; and
(2) Will consider only offers of end products that are U.S.-
made, qualifying country, Iraqi, or designated country end products
unless--
(i) There are no offers of such end products;
(ii) The offers of such end products are insufficient to fulfill
the Government's requirements; or
(iii) A national interest waiver has been granted.
(c) Certification and identification of country of origin.
(1) For all line items subject to the Trade Agreements clause of
this solicitation, the offeror certifies that each end product to be
delivered under a contract resulting from this solicitation, except
those listed in paragraph (c)(2) of this provision, is a U.S.-made,
qualifying country, Iraqi, or designated country end product.
(2) The following supplies are other nondesignated country end
products:
(Country of Origin)
(Line Item Number)
(End of provision)
252.225-7023 Preference for Products or Services from Iraq or
Afghanistan.
As prescribed in 225.7703-5(a), use the following provision:
PREFERENCE FOR PRODUCTS OR SERVICES FROM IRAQ OR AFGHANISTAN (SEP 2008)
(a) Definitions. Product from Iraq or Afghanistan and service
from Iraq or Afghanistan, as used in this provision, are defined in
the clause of this solicitation entitled ``Requirement for Products
or Services from Iraq or Afghanistan'' (DFARS 252.225-7024).
(b) Representation. The offeror represents that all products or
services to be delivered under a contract resulting from this
solicitation are products from Iraq or Afghanistan or services from
Iraq or Afghanistan, except those listed in--
(1) Paragraph (c) of this provision; or
(2) Paragraph (c)(2) of the provision entitled ``Trade
Agreements Certificate--Inclusion of Iraqi End Products,'' if
included in this solicitation.
(c) Other products or services. The following offered products
or services are not products from Iraq or Afghanistan or services
from Iraq or Afghanistan:
(Country of Origin)
(Line Item Number)
(d) Evaluation. For the purpose of evaluating competitive
offers, the Contracting Officer will increase by 50 percent the
prices of offers of products or services that are not products or
services from Iraq or Afghanistan.
(End of provision)
252.225-7024 Requirement for Products or Services from Iraq or
Afghanistan.
As prescribed in 225.7703-5(b), use the following clause:
REQUIREMENT FOR PRODUCTS OR SERVICES FROM IRAQ OR AFGHANISTAN (SEP
2008)
(a) Definitions. As used in this clause--
(1) Product from Iraq or Afghanistan means a product that is
mined, produced, or manufactured in Iraq or Afghanistan.
(2) Service from Iraq or Afghanistan means a service that is
performed in Iraq or Afghanistan predominantly by citizens or
permanent resident aliens of Iraq or Afghanistan.
(b) The Contractor shall provide only products from Iraq or
Afghanistan or services from Iraq or Afghanistan under this
contract, unless, in its offer, it specified that it would provide
products or services other than products from Iraq or Afghanistan or
services from Iraq or Afghanistan.
(End of clause)
0
10. Section 252.225-7026 is added to read as follows:
252.225-7026 Acquisition Restricted to Products or Services from Iraq
or Afghanistan.
As prescribed in 225.7703-5(c), use the following clause:
ACQUISITION RESTRICTED TO PRODUCTS OR SERVICES FROM IRAQ OR AFGHANISTAN
(SEP 2008)
(a) Definitions. As used in this clause--
(1) Product from Iraq or Afghanistan means a product that is
mined, produced, or manufactured in Iraq or Afghanistan.
(2) Service from Iraq or Afghanistan means a service that is
performed in Iraq or Afghanistan predominantly by citizens or
permanent resident aliens of Iraq or Afghanistan.
(b) The Contractor shall provide only products from Iraq or
Afghanistan or services from Iraq or Afghanistan under this
contract.
(End of clause)
252.225-7032 [Amended]
0
11. Section 252.225-7032 is amended in the introductory text by
removing ``225.1101(7)'' and adding in its place ``225.1101(8)''.
[[Page 53156]]
252.225-7033 [Amended]
0
12. Section 252.225-7033 is amended in the introductory text by
removing ``225.1101(8)'' and adding in its place ``225.1101(9)''.
252.225-7035 [Amended]
0
13. Section 252.225-7035 is amended in the introductory text and in
Alternate I by removing ``225.1101(9)'' and adding in its place
``225.1101(10)''.
252.225-7036 [Amended]
0
14. Section 252.225-7036 is amended in the introductory text and in
Alternate I by removing ``225.1101(10)'' and adding in its place
``225.1101(11)''.
[FR Doc. E8-21376 Filed 9-12-08; 8:45 am]
BILLING CODE 5001-08-P
