Defense Federal Acquisition Regulation Supplement; Technical Amendments, 34264-34265 [E9-16663]
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Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 202—DEFINITIONS OF WORDS
AND TERMS
2. Section 202.101 is amended by
adding a definition of General public
and non-governmental entities in
alphabetical order to read as follows:
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202.101
Definitions.
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General public and non-governmental
entities, as used in the definition of
commercial item at FAR 2.101, do not
include the Federal Government or a
State, local, or foreign government (Pub.
L. 110–181, Section 815(b)).
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PART 212—ACQUISITION OF
COMMERCIAL ITEMS
3. Section 212.207 is added to read as
follows:
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212.207
Contract type.
(b) In accordance with Section 805 of
the National Defense Authorization Act
for Fiscal Year 2008 (Pub. L. 110–181),
use of time-and-materials and laborhour contracts for the acquisition of
commercial items is authorized only for
the following:
(i) Services acquired for support of a
commercial item.
(ii) Emergency repair services.
(iii) Any other commercial services
only to the extent that the head of the
agency concerned approves a written
determination by the contracting officer
that—
(A) The services to be acquired are
commercial;
(B) If the services to be acquired are
subject to FAR 15.403–1(c)(3)(ii), the
offeror of the services has submitted
sufficient information in accordance
with that subsection;
(C) Such services are commonly sold
to the general public through use of
time-and-materials or labor-hour
contracts; and
(D) The use of a time-and-materials or
labor-hour contract type is in the best
interest of the Government.
PART 234—MAJOR SYSTEM
ACQUISITION
4. Section 234.7002 is revised to read
as follows:
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234.7002
Policy.
(a) Major weapon systems. (1) A DoD
major weapon system may be treated as
a commercial item, or acquired under
procedures established for the
acquisition of commercial items, only
if—
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15:15 Jul 14, 2009
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(i) The Secretary of Defense
determines that—
(A) The major weapon system is a
commercial item as defined in FAR
2.101; and
(B) Such treatment is necessary to
meet national security objectives;
(ii) The offeror has submitted
sufficient information to evaluate,
through price analysis, the
reasonableness of the price for such a
system; and
(iii) The congressional defense
committees are notified at least 30 days
before such treatment or acquisition
occurs. Follow the procedures at PGI
234.7002.
(2) The authority of the Secretary of
Defense to make a determination under
paragraph (a)(1) of this section may not
be delegated below the level of the
Deputy Secretary of Defense.
(b) Subsystems. A subsystem of a
major weapon system (other than a
commercially available off-the-shelf
item) may be treated as a commercial
item and acquired under procedures
established for the acquisition of
commercial items only if—
(1) The subsystem is intended for a
major weapon system that is being
acquired, or has been acquired, under
procedures established for the
acquisition of commercial items in
accordance with paragraph (a) of this
section; or
(2) The contracting officer determines
in writing that—
(i) The subsystem is a commercial
item; and
(ii) The offeror has submitted
sufficient information to evaluate,
through price analysis, the
reasonableness of the price for the
subsystem.
(c) Components and spare parts. (1) A
component or spare part for a major
weapon system (other than a
commercially available off-the-shelf
item) may be treated as a commercial
item only if—
(i) The component or spare part is
intended for—
(A) A major weapon system that is
being acquired, or has been acquired,
under procedures established for the
acquisition of commercial items in
accordance with paragraph (a) of this
section; or
(B) A subsystem of a major weapon
system that is being acquired, or has
been acquired, under procedures
established for the acquisition of
commercial items in accordance with
paragraph (b) of this section; or
(ii) The contracting officer determines
in writing that—
(A) The component or spare part is a
commercial item; and
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(B) The offeror has submitted
sufficient information to evaluate,
through price analysis, the
reasonableness of the price for the
component or spare part.
(2) This paragraph (c) shall apply only
to components and spare parts that are
acquired by DoD through a prime
contract or a modification to a prime
contract, or through a subcontract under
a prime contract or modification to a
prime contract on which the prime
contractor adds no, or negligible, value.
(d) Relevant information. To the
extent necessary to make a
determination under paragraph (a)(1)(ii),
(b)(2), or (c)(1)(ii) of this section, the
contracting officer may request the
offeror to submit—
(1) Prices paid for the same or similar
commercial items under comparable
terms and conditions by both
Government and commercial customers;
and
(2) Other relevant information
regarding the basis for price or cost,
including information on labor costs,
material costs, and overhead rates, if the
contracting officer determines that the
information described in paragraph
(d)(1) of this section is not sufficient to
determine price reasonableness.
[FR Doc. E9–16674 Filed 7–14–09; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 204, 219, 225, and 252
Defense Federal Acquisition
Regulation Supplement; Technical
Amendments
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
SUMMARY: DoD is making technical
amendments to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to update references within the
DFARS text.
DATES: Effective Date: July 15, 2009.
FOR FURTHER INFORMATION CONTACT: Ms.
Michele Peterson, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3D139, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone 703–602–0311;
facsimile 703–602–7887.
SUPPLEMENTARY INFORMATION: This final
rule amends DFARS text as follows:
• 204.7202–2, 219.708, 219.1204, and
225.1101. Updates cross-references.
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15JYR1
Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations
• 225.301–4. Adds a reference to a
DoD Web site.
• 252.225–7040. Updates a reference
to a DoD publication.
List of Subjects in 48 CFR Parts 204,
219, 225, and 252
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR Parts 204, 219, 225,
and 252 are amended as follows:
■ 1. The authority citation for 48 CFR
Parts 204, 219, 225, and 252 continues
to read as follows:
■
[FR Doc. E9–16663 Filed 7–14–09; 8:45 am]
BILLING CODE 5001–08–P
48 CFR Part 207
2. Section 204.7202–2 is revised to
read as follows:
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RIN 0750–AF39
Defense Federal Acquisition
Regulation Supplement; Lease of
Vessels, Aircraft, and Combat Vehicles
(DFARS Case 2006–D013)
DUNS numbers.
Requirements for use of DUNS
numbers are in FAR 4.605(b) and
4.607(a).
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
PART 219—SMALL BUSINESS
PROGRAMS
[Amended]
3. Section 219.708 is amended in
paragraphs (b)(2) and (c)(1) by removing
‘‘219.702(a)’’ and adding in its place
‘‘219.702’’.
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[Amended]
4. Section 219.1204 is amended in
paragraph (c), in the last sentence, by
removing ‘‘219.702(a)’’ and adding in its
place ‘‘219.702’’.
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PART 225—FOREIGN ACQUISITION
5. Section 225.301–4 is amended in
paragraph (2) by revising the last
sentence to read as follows:
■
225.301–4
7. Section 252.225–7040 is amended
as follows:
■ a. By revising the clause date to read
‘‘(JUL 2009)’’; and
■ b. In paragraph (n)(2) by removing
‘‘DoD Directive 2310.2, Personnel
Recovery’’ and adding in its place ‘‘DoD
Directive 3002.01E, Personnel Recovery
in the Department of Defense’’.
Defense Acquisition Regulations
System
PART 204—ADMINISTRATIVE
MATTERS
219.1204
[Amended]
DEPARTMENT OF DEFENSE
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
219.708
252.225–7040
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Government procurement.
204.7202–2
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
Contract clause.
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(2) * * * Information on the SPOT
system is available at https://
www.dod.mil/bta/products/spot.html
and https://www.acq.osd.mil/log/PS/
spot.html.
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement statutory
provisions relating to the leasing of
vessels, aircraft, and combat vehicles.
The rule applies to long-term leases and
charters and to contracts with a
substantial termination liability.
DATES: Effective Date: July 15, 2009.
FOR FURTHER INFORMATION CONTACT: Ms.
Cassandra Freeman, Defense
Acquisition Regulations System, OUSD
(AT&L) DPAP (DARS), IMD 3D139, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone 703–602–8383;
facsimile 703–602–7887. Please cite
DFARS Case 2006–D013.
SUPPLEMENTARY INFORMATION:
A. Background
225.1101
10 U.S.C. 2401, as amended by
Section 815 of the National Defense
Authorization Act for Fiscal Year 2006
(Pub. L. 109–163), permits a military
department to award a long-term lease
or charter, or a contract with a
substantial termination liability, for a
vessel, aircraft, or combat vehicle, only
if the Secretary of the military
department is specifically authorized by
law to award the contract and provides
[Amended]
6. Section 225.1101 is amended in
paragraph (11)(i) introductory text by
removing ‘‘paragraph (10)’’ and adding
in its place ‘‘paragraph (11)’’.
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34265
the appropriate notifications to the
congressional defense committees.
Prior to the enactment of Public Law
109–163, the provisions of 10 U.S.C.
2401 applied to vessels and aircraft.
Section 815 of Public Law 109–163
amended 10 U.S.C. 2401 to also include
combat vehicles.
DoD published a proposed rule at 72
FR 28662 on May 22, 2007, to address
the provisions of 10 U.S.C. 2401. Five
sources submitted comments on the
proposed rule. A discussion of the
comments is provided below.
1. Comment: The proposed rule
unduly applies its requirements to all
leases and charters instead of only longterm leases and charters.
DoD Response: The rule has been
amended to clarify that its requirements
apply only to long-term leases and
charters, and to contracts that provide
for a substantial termination liability,
consistent with the statutory provisions.
2. Comment: One respondent stated
that the approval authority specified in
the proposed rule (head of the agency)
is not consistent with the approval
authority specified in the statute
(Secretary of the military department).
Another respondent recommended
delegation of the approval authority to
the head of the contracting activity, to
be consistent with the implementation
of 10 U.S.C. 2401a at DFARS 207.470,
for approval of leases and charters with
terms of 18 months or more.
DoD Response: The final rule
specifies the Secretary of the military
department as the approval authority,
consistent with 10 U.S.C. 2401.
However, in accordance with FAR
1.108(b), the Secretary of the military
department may delegate this authority
as deemed appropriate.
3. Comment: The term ‘‘similar
agreement’’ should be deleted from the
rule, since this term is not defined in
the DFARS or in the statute.
DoD Response: The term has been
excluded from the final rule.
4. Comment: The rule should identify
under what circumstances DoD can
lease vessels, aircraft, and combat
vehicles and how the decision to lease
should be determined. In addition, the
rule should include the definitions of
the terms ‘‘long-term lease’’ and
‘‘substantial termination liability’’ found
in 10 U.S.C. 2401(d).
DoD Response: The recommended
changes have not been adopted. The
rule is intended to inform contracting
officers of the requirements of 10 U.S.C.
2401, but is not intended to address all
aspects of leasing. Leasing is a highly
specialized area that requires close
coordination between the contracting
officer and legal counsel.
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]]>Agencies
[Federal Register Volume 74, Number 134 (Wednesday, July 15, 2009)]
[Rules and Regulations]
[Pages 34264-34265]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16663]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 219, 225, and 252
Defense Federal Acquisition Regulation Supplement; Technical
Amendments
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is making technical amendments to the Defense Federal
Acquisition Regulation Supplement (DFARS) to update references within
the DFARS text.
DATES: Effective Date: July 15, 2009.
FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, Defense
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139,
3062 Defense Pentagon, Washington, DC 20301-3062. Telephone 703-602-
0311; facsimile 703-602-7887.
SUPPLEMENTARY INFORMATION: This final rule amends DFARS text as
follows:
204.7202-2, 219.708, 219.1204, and 225.1101. Updates
cross-references.
[[Page 34265]]
225.301-4. Adds a reference to a DoD Web site.
252.225-7040. Updates a reference to a DoD publication.
List of Subjects in 48 CFR Parts 204, 219, 225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR Parts 204, 219, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR Parts 204, 219, 225, and 252
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 204--ADMINISTRATIVE MATTERS
0
2. Section 204.7202-2 is revised to read as follows:
204.7202-2 DUNS numbers.
Requirements for use of DUNS numbers are in FAR 4.605(b) and
4.607(a).
PART 219--SMALL BUSINESS PROGRAMS
219.708 [Amended]
0
3. Section 219.708 is amended in paragraphs (b)(2) and (c)(1) by
removing ``219.702(a)'' and adding in its place ``219.702''.
219.1204 [Amended]
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4. Section 219.1204 is amended in paragraph (c), in the last sentence,
by removing ``219.702(a)'' and adding in its place ``219.702''.
PART 225--FOREIGN ACQUISITION
0
5. Section 225.301-4 is amended in paragraph (2) by revising the last
sentence to read as follows:
225.301-4 Contract clause.
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(2) * * * Information on the SPOT system is available at https://www.dod.mil/bta/products/spot.html and https://www.acq.osd.mil/log/PS/spot.html.
225.1101 [Amended]
0
6. Section 225.1101 is amended in paragraph (11)(i) introductory text
by removing ``paragraph (10)'' and adding in its place ``paragraph
(11)''.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.225-7040 [Amended]
0
7. Section 252.225-7040 is amended as follows:
0
a. By revising the clause date to read ``(JUL 2009)''; and
0
b. In paragraph (n)(2) by removing ``DoD Directive 2310.2, Personnel
Recovery'' and adding in its place ``DoD Directive 3002.01E, Personnel
Recovery in the Department of Defense''.
[FR Doc. E9-16663 Filed 7-14-09; 8:45 am]
BILLING CODE 5001-08-P
