Defense Federal Acquisition Regulation Supplement; Government Property (DFARS Case 2007-D020), 37645-37648 [E9-17954]
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Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Rules and Regulations
204.602
General.
204.902
General.
37645
DEPARTMENT OF DEFENSE
See PGI 204.602 for additional
information on the Federal Procurement
Data System (FPDS) and procedures for
resolving technical or policy issues
relating to FPDS.
(b) DoD uses the Federal Procurement
Data System (FPDS) to meet these
reporting requirements.
Defense Acquisition Regulations
System
204.7203
204.604
■
48 CFR Parts 204, 236, 237, 239, 245,
and 252
Responsibilities.
(1) The process for reporting contract
actions to FPDS should, where possible,
be automated by incorporating it into
contract writing systems.
(2) Data in FPDS is stored indefinitely
and is electronically retrievable.
Therefore, the contracting officer may
reference the contract action report
(CAR) approval date in the associated
Government contract file instead of
including a paper copy of the
electronically submitted CAR in the file.
Such reference satisfies contract file
documentation requirements of FAR
4.803(a).
(3) By December 15th of each year, the
chief acquisition officer of each DoD
component required to report its
contract actions shall submit to the
Director, Defense Procurement and
Acquisition Policy, its annual
certification and data validation results
for the preceding fiscal year in
accordance with the DoD Data
Improvement Plan requirements at
https://www.acq.osd.mil/dpap/pdi/eb.
The Director, Defense Procurement and
Acquisition Policy, will submit a
consolidated DoD annual certification to
the Office of Management and Budget
by January 5th of each year.
204.606
Reporting data.
In addition to FAR 4.606, follow the
procedures at PGI 204.606 for reporting
data to FPDS.
204.670
[Amended]
5. Section 204.7203 is amended by
removing paragraph (c).
RIN 0750–AF92
PART 219—SMALL BUSINESS
PROGRAMS
Defense Federal Acquisition
Regulation Supplement; Government
Property (DFARS Case 2007–D020)
6. Section 219.001 is amended by
revising paragraph (2)(iv) to read as
follows:
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
■
219.001
Definitions.
*
*
*
*
*
(2) * * *
(iv) Reporting contract actions with
SDB concerns in the Federal
Procurement Data System (FPDS).
■ 7. Section 219.202–5 is amended by
revising the introductory text to read as
follows:
219.202–5 Data collection and reporting
requirements.
Determine the premium percentage to
be entered in the Federal Procurement
Data System (FPDS) as follows:
*
*
*
*
*
PART 253—FORMS
253.204 and 253.204–70
[Removed]
8. Sections 253.204 and 253.204–70
are removed.
■
[FR Doc. E9–17946 Filed 7–28–09; 8:45 am]
BILLING CODE 5001–08–P
[Removed]
3. Section 204.670 is removed.
4. Section 204.902 is revised to read
as follows:
■
■
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to update text addressing
management of Government property in
the possession of contractors. The
DFARS changes are consistent with
changes made to the Federal
Acquisition Regulation (FAR).
DATES: Effective Date: July 29, 2009.
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 2007–D020.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule updates and
reorganizes DFARS Subparts 245.1,
245.3, 245.4, and 245.5 for consistency
with FAR changes addressing
management of government property in
the possession of contractors, published
at 72 FR 27364 on May 15, 2007.
Related changes are made in Parts 204,
236, 237, 239, and 252. The following
table summarizes the DFARS changes in
this rule:
DFARS citation
Changes made by this rule
204.7003 .........................................
Removed ‘‘facilities contracts’’ from the list of contract types, consistent with the removal of references to
facilities contracts from the FAR.
Updated the reference to the applicable FAR Government Property clause.
Updated and clarified the text in paragraphs (b)(3) and (4).
Updated and relocated the text to 245.105.
(1) Updated the definition of ‘‘facilities project’’ and relocated it to 237.7501.
(2) Relocated the definition of ‘‘mapping, charting, and geodesy’’ to 245.101 without change.
(3) Removed the definition of ‘‘provide,’’ since this term is now defined in FAR 45.101.
(4) Removed the definitions of ‘‘agency-peculiar property,’’ ‘‘industrial plant equipment,’’ and ‘‘other plant
equipment,’’ as they are no longer considered necessary.
Revised to eliminate text addressing responsibilities for approval of facilities projects, as these responsibilities are addressed DoD Directive 4275.5. The remaining text is relocated to 237.7502, with cross-references added at 236.275 and 245.102(3).
Removed. The specified equipment screening procedures have become obsolete.
Removed. The separate procedures for facilities contracts are no longer necessary.
Updated and relocated to 245.102(2).
Removed. The corresponding FAR text has been removed.
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237.7003 .........................................
239.7402 .........................................
245.104 ...........................................
245.301 ...........................................
245.302–1(a) ...................................
245.302–1(b) and DD Form 1419 ..
245.302–2 and 245.302–7 ..............
245.303–2 .......................................
245.307–2 .......................................
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DFARS citation
Changes made by this rule
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245.310 ...........................................
245.310–70 .....................................
245.401 ...........................................
245.403 ...........................................
245.405 ...........................................
245.407 ...........................................
Subpart 245.5 .................................
Part 252 ..........................................
Updated and relocated to 245.102(1).
Relocated to 245.107–70.
Removed as unnecessary.
Relocated to 245.302(2).
Updated and relocated to 245.302(1) and (3).
Removed as unnecessary.
Removed as unnecessary.
Updated references and clause titles.
DoD published a proposed rule at 73
FR 55007 on September 24, 2008, to
address the DFARS changes. Three
sources submitted comments on the
proposed rule. A discussion of the
comments is provided below.
1. Comment: One respondent
recommended retaining the definition of
‘‘agency peculiar property’’.
DoD Response: The term ‘‘agency
peculiar property’’ is no longer used in
DFARS Part 245. Therefore, the
definition has been excluded from the
final rule.
2. Comment: One respondent
recommended that the term ‘‘facilities’’
be defined and included within DFARS
Part 245.
DoD Response: The term ‘‘facilities’’
is defined in DoD Directive 4275.5,
Acquisition and Management of
Industrial Resources. The rule contains
a reference to Directive 4275.5 in
Subpart 237.75.
3. Comment: One respondent
suggested the addition of text at 245.105
to specify that the administrative
contracting officer will perform property
administration in the absence of an
assigned property administrator.
DoD Response: DoD considers the
additional text unnecessary, since the
performance of contract property
administration is already a contracting
officer function listed in FAR
42.302(26). However, for clarity, the
term ‘‘property administrator’’ has been
revised to ‘‘assigned property
administrator’’ at 245.105.
4. Comment: One respondent stated
that the proposed text at 245.301(2)
elevates the level of approval required
for certain non-Government use of
Government-owned equipment beyond
that specified in the FAR, since FAR
45.301 assigns this responsibility to the
head of the contracting activity whereas
the proposed DFARS rule requires
assistant Secretary or agency head
approval.
DoD Response: This text has been
excluded from the final rule. FAR
45.301 adequately addresses use and
rental policy.
5. Comment: One respondent
suggested the phrase ‘‘only if’’ be
replaced with the term ‘‘provided’’ at
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DFARS 245.302(1)(i), with regard to the
conditions placed on contracting officer
approval of contractor use of
Government property on work for
foreign governments or international
organizations.
DoD Response: The text at DFARS
245.302(1)(i) has been revised to replace
the term ‘‘only if’’ with the term
‘‘provided.’’ Additionally, to preserve
contracting officer flexibility, the word
‘‘shall’’ has been replaced with the word
‘‘may’’ in that same paragraph.
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 makes no significant
change to DoD policy regarding the
management of Government property in
the possession of contractors.
C. Paperwork Reduction Act
The information collection
requirements of DFARS Part 245 have
been approved by the Office of
Management and Budget under Control
Number 0704–0246.
List of Subjects in 48 CFR Parts 204,
236, 237, 239, 245, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 204, 236, 237,
239, 245, and 252 are amended as
follows:
■ 1. The authority citation for 48 CFR
Parts 204, 236, 237, 239, 245, and 252
continues to read as follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 204—ADMINISTRATIVE
MATTERS
2. Section 204.7003 is amended as
follows:
■
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a. In paragraph (a)(3)(iii) by removing
‘‘facilities contracts,’’; and
■ b. By revising paragraph (a)(3)(v) to
read as follows:
■
204.7003
Basic PII number.
(a) * * *
(3) * * *
(v) Reserved—E
*
*
*
*
*
PART 236—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
3. Section 236.275 is added to read as
follows:
■
236.275 Construction of industrial
resources.
See Subpart 237.75 for policy relating
to facilities projects.
PART 237—SERVICE CONTRACTING
4. Section 237.7003 is amended by
revising paragraph (c) to read as follows:
■
237.7003 Solicitation provisions and
contract clauses.
*
*
*
*
*
(c) Use the clause at FAR 52.245–1,
Government Property, with its Alternate
I, in solicitations and contracts that
include port of entry requirements.
■ 5. Subpart 237.75 is added to read as
follows:
Subpart 237.75—Acquisition and
Management of Industrial Resources
Sec.
237.7501 Definition.
237.7502 Policy.
Subpart 237.75—Acquisition and
Management of Industrial Resources
237.7501
Definition.
Facilities project, as used in this
subpart, means a Government project to
provide, modernize, or replace real
property for use by a contractor in
performing a Government contract or
subcontract.
237.7502
Policy.
(a) Comply with DoD Directive
4275.5, Acquisition and Management of
Industrial Resources, in processing
requests for facilities projects.
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(b) Departments and agencies shall
submit reports of facilities projects to
the House and Senate Armed Services
Committees—
(1) At least 30 days before starting
facilities projects involving real
property (10 U.S.C. 2662); and
(2) In advance of starting construction
for a facilities project regardless of cost.
Use DD Form 1391, FY__ Military
Construction Project Data, to notify
congressional committees of projects
that are not included in the annual
budget.
PART 239—ACQUISITION OF
INFORMATION TECHNOLOGY
6. Section 239.7402 is amended by
revising paragraphs (b)(3) and (4) to read
as follows:
■
239.7402
Policy.
*
*
*
*
*
(b) * * *
(3) Except as provided in paragraph
(b)(4) of this section, contractors and
subcontractors shall normally provide
all required property, to include
telecommunications security equipment
or related devices, in accordance with
FAR 45.102. In some cases, such as for
communications security (COMSEC)
equipment designated as controlled
cryptographic item (CCI), contractors or
subcontractors must also meet
ownership eligibility conditions.
(4) The head of the agency may
authorize provision of the necessary
property as Government-furnished
property or acquisition as contractoracquired property, as long as conditions
of FAR 45.102(b) are met.
*
*
*
*
*
PART 245—GOVERNMENT PROPERTY
7. Subparts 245.1 and 245.3 are
revised to read as follows:
■
Subpart 245.1—General
Sec.
245.101 Definitions.
245.102 Policy.
245.105 Contractor’s property management
system compliance.
245.107–70 Contract clause.
Subpart 245.1—General
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245.101
Definitions.
Mapping, charting, and geodesy
property, as used in this subpart, is
defined in the clause at 252.245–7000,
Government-Furnished Mapping,
Charting, and Geodesy Property.
245.102
Policy.
(1) Mapping, charting, and geodesy
property. All Government-furnished
mapping, charting, and geodesy (MC&G)
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property is under the control of the
Director, National Geospatial
Intelligence Agency.
(i) MC&G property shall not be
duplicated, copied, or otherwise
reproduced for purposes other than
those necessary for contract
performance.
(ii) Upon completion of contract
performance, the contracting officer
shall—
(A) Contact the Director, National
Geospatial Intelligence Agency, 4600
Sangamore Road, Bethesda, MD 20816–
5003, for disposition instructions;
(B) Direct the contractor to destroy or
return all Government-furnished MC&G
property not consumed during contract
performance; and
(C) Specify the destination and means
of shipment for property to be returned
to the Government.
(2) Government supply sources. When
a contractor will be responsible for
preparing requisitioning documentation
to acquire Government-furnished
property from Government supply
sources, include in the contract the
requirement to prepare the
documentation in accordance with DoD
4000.25–1–M, Military Standard
Requisitioning and Issue Procedures
(MILSTRIP). Copies are available from
the address cited at PGI 251.102.
(3) Acquisition and management of
industrial resources. See Subpart 237.75
for policy relating to facilities projects.
245.105 Contractor’s property
management system compliance.
The assigned property administrator
shall perform property administration in
accordance with department or agency
procedures.
245.107–70
Contract clause.
Use the clause at 252.245–7000,
Government-Furnished Mapping,
Charting, and Geodesy Property, in
solicitations and contracts when
mapping, charting, and geodesy
property is to be furnished.
Subpart 245.3—Authorizing the Use
and Rental of Government Property
245.302 Contracts with foreign
governments or international organizations.
(1) General.
(i) Approval. A contractor may use
Government property on work for
foreign governments and international
organizations only when approved in
writing by the contracting officer having
cognizance of the property. The
contracting officer may grant approval,
provided—
(A) The use will not interfere with
foreseeable requirements of the United
States;
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37647
(B) The work is undertaken as a DoD
foreign military sale; or
(C) For a direct commercial sale, the
foreign country or international
organization would be authorized to
contract with the department concerned
under the Arms Export Control Act.
(ii) Use charges.
(A) The Use and Charges clause is
applicable on direct commercial sales to
foreign governments or international
organizations.
(B) When a particular foreign
government or international
organization has funded the acquisition
of property, do not assess the foreign
government or international
organization rental charges or
nonrecurring recoupments for the use of
such property.
(2) Special tooling and special test
equipment.
(i) DoD normally recovers a fair share
of nonrecurring costs of special tooling
and special test equipment by including
these costs in its calculation of the
nonrecurring cost recoupment charge
when major defense equipment is sold
by foreign military sales or direct
commercial sales to foreign
governments or international
organizations. ‘‘Major defense
equipment’’ is defined in DoD Directive
2140.2, Recoupment of Nonrecurring
Costs on Sales of U.S. Items, as any item
of significant military equipment on the
United States Munitions List having a
nonrecurring research, development,
test, and evaluation cost of more than
$50 million or a total production cost of
more than $200 million.
(ii) When the cost thresholds in
paragraph (2)(i) of this section are not
met, the contracting officer shall assess
rental charges for use of special tooling
and special test equipment pursuant to
the Use and Charges clause if
administratively practicable.
(3) Waivers.
(i) Rental charges for use of U.S.
production and research property on
commercial sales transactions to the
Government of Canada are waived for
all commercial contracts. This waiver is
based on an understanding wherein the
Government of Canada has agreed to
waive its rental charges.
(ii) Requests for waiver or reduction
of charges for the use of Government
property on work for foreign
governments or international
organizations shall be submitted to the
contracting officer, who shall refer the
matter through contracting channels. In
response to these requests, approvals
may be granted only by the Director,
Defense Security Cooperation Agency,
for particular sales that are consistent
with paragraph (1)(i)(C) of this section.
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Subparts 245.4 and 245.5 [Removed]
8. Subparts 245.4 and 245.5 are
removed.
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.217–7005
[Amended]
9. Section 252.217–7005 is amended
as follows:
■ a. By revising the clause date to read
‘‘(JUL 2009)’’; and
■ b. In paragraph (e)(7) by removing
‘‘(Fixed-Price Contracts)’’.
■
252.217–7010
[Amended]
10. Section 252.217–7010 is amended
as follows:
■ a. By revising the clause date to read
‘‘(JUL 2009)’’; and
■ b. In paragraph (c)(3) by removing
‘‘(Fixed Price Contracts)’’.
■
252.242–7004
[Amended]
11. Section 252.242–7004 is amended
as follows:
■ a. By revising the clause date to read
‘‘(JUL 2009)’’; and
■ b. In paragraph (e)(9) introductory
text, in the first sentence, by removing
‘‘Regardless of the provisions of FAR
45.505–3(f)(1)(ii), have’’ and adding in
its place ‘‘Have’’.
■
252.245–7000
[Amended]
12. Section 252.245–7000 is amended
in the introductory text by removing
‘‘245.310–70’’ and adding in its place
‘‘245.107–70’’.
■
clause for use in contracts that include
or may include research involving
human subjects.
DATES: Effective Date: July 29, 2009.
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 2007–D008.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule adds DFARS policy
addressing statutory and regulatory
requirements for the ethical treatment of
human subjects involved in research
projects. The rule contains a clause for
use in contracts involving human
subjects in research, to inform
contractors of their responsibilities for
compliance with 32 CFR Part 219; DoD
Directive 3216.02; applicable DoD
component policies; 10 U.S.C. 980; and,
when applicable, Food and Drug
Administration policies and regulations.
DoD published a proposed rule at 73
FR 63666 on October 27, 2008. DoD
received no comments on the proposed
rule. Therefore, DoD has adopted the
proposed rule as a final rule without
change.
This rule was subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
48 CFR Parts 207, 235, and 252
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 is a reinforcement of
existing requirements and obligations
that apply with regard to the protection
of human subjects involved in research
projects.
RIN 0750–AF96
C. Paperwork Reduction Act
Defense Federal Acquisition
Regulation Supplement; Protection of
Human Subjects in Research Projects
(DFARS Case 2007–D008)
The Paperwork Reduction Act does
not apply, because the rule does not
contain any new information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
[FR Doc. E9–17954 Filed 7–28–09; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
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Defense Acquisition Regulations
System
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
List of Subjects in 48 CFR Parts 207,
235, and 252
DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to address requirements for the
protection of human subjects involved
in research projects. The rule contains a
SUMMARY:
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1. The authority citation for 48 CFR
parts 207, 235, and 252 continues to
read as follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 207—ACQUISITION PLANNING
2. Section 207.172 is added to read as
follows:
■
207.172
Human research.
Any DoD component sponsoring
research involving human subjects—
(a) Is responsible for oversight of
compliance with 32 CFR Part 219,
Protection of Human Subjects; and
(b) Must have a Human Research
Protection Official, as defined in the
clause at 252.235–7004, Protection of
Human Subjects, and identified in the
DoD component’s Human Research
Protection Management Plan. This
official is responsible for the oversight
and execution of the requirements of the
clause at 252.235–7004 and shall be
identified in acquisition planning.
PART 235—RESEARCH AND
DEVELOPMENT CONTRACTING
3. Section 235.072 is amended by
adding paragraph (e) to read as follows:
■
235.072
Additional contract clauses.
*
*
*
*
*
(e) Use the clause at 252.235–7004,
Protection of Human Subjects, in
solicitations and contracts that include
or may include research involving
human subjects in accordance with 32
CFR Part 219, DoD Directive 3216.02,
and 10 U.S.C. 980, including research
that meets exemption criteria under 32
CFR 219.101(b). The clause—
(1) Applies to solicitations and
contracts awarded by any DoD
component, regardless of mission or
funding Program Element Code; and
(2) Does not apply to use of cadaver
materials alone, which are not directly
regulated by 32 CFR Part 219 or DoD
Directive 3216.02, and which are
governed by other DoD policies and
applicable State and local laws.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Section 252.235–7004 is added to
read as follows:
■
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations
System.
252.235–7004
Subjects.
Therefore, 48 CFR parts 207, 235, and
252 are amended as follows:
As prescribed in 235.072(e), use the
following clause:
■
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Protection of Human
]]>Agencies
[Federal Register Volume 74, Number 144 (Wednesday, July 29, 2009)]
[Rules and Regulations]
[Pages 37645-37648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17954]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 236, 237, 239, 245, and 252
RIN 0750-AF92
Defense Federal Acquisition Regulation Supplement; Government
Property (DFARS Case 2007-D020)
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 update text addressing
management of Government property in the possession of contractors. The
DFARS changes are consistent with changes made to the Federal
Acquisition Regulation (FAR).
DATES: Effective Date: July 29, 2009.
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 2007-D020.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule updates and reorganizes DFARS Subparts 245.1,
245.3, 245.4, and 245.5 for consistency with FAR changes addressing
management of government property in the possession of contractors,
published at 72 FR 27364 on May 15, 2007. Related changes are made in
Parts 204, 236, 237, 239, and 252. The following table summarizes the
DFARS changes in this rule:
------------------------------------------------------------------------
DFARS citation Changes made by this rule
------------------------------------------------------------------------
204.7003.......................... Removed ``facilities contracts''
from the list of contract types,
consistent with the removal of
references to facilities contracts
from the FAR.
237.7003.......................... Updated the reference to the
applicable FAR Government Property
clause.
239.7402.......................... Updated and clarified the text in
paragraphs (b)(3) and (4).
245.104........................... Updated and relocated the text to
245.105.
245.301........................... (1) Updated the definition of
``facilities project'' and
relocated it to 237.7501.
(2) Relocated the definition of
``mapping, charting, and geodesy''
to 245.101 without change.
(3) Removed the definition of
``provide,'' since this term is now
defined in FAR 45.101.
(4) Removed the definitions of
``agency-peculiar property,''
``industrial plant equipment,'' and
``other plant equipment,'' as they
are no longer considered necessary.
245.302-1(a)...................... Revised to eliminate text addressing
responsibilities for approval of
facilities projects, as these
responsibilities are addressed DoD
Directive 4275.5. The remaining
text is relocated to 237.7502, with
cross-references added at 236.275
and 245.102(3).
245.302-1(b) and DD Form 1419..... Removed. The specified equipment
screening procedures have become
obsolete.
245.302-2 and 245.302-7........... Removed. The separate procedures for
facilities contracts are no longer
necessary.
245.303-2......................... Updated and relocated to 245.102(2).
245.307-2......................... Removed. The corresponding FAR text
has been removed.
[[Page 37646]]
245.310........................... Updated and relocated to 245.102(1).
245.310-70........................ Relocated to 245.107-70.
245.401........................... Removed as unnecessary.
245.403........................... Relocated to 245.302(2).
245.405........................... Updated and relocated to 245.302(1)
and (3).
245.407........................... Removed as unnecessary.
Subpart 245.5..................... Removed as unnecessary.
Part 252.......................... Updated references and clause
titles.
------------------------------------------------------------------------
DoD published a proposed rule at 73 FR 55007 on September 24, 2008,
to address the DFARS changes. Three sources submitted comments on the
proposed rule. A discussion of the comments is provided below.
1. Comment: One respondent recommended retaining the definition of
``agency peculiar property''.
DoD Response: The term ``agency peculiar property'' is no longer
used in DFARS Part 245. Therefore, the definition has been excluded
from the final rule.
2. Comment: One respondent recommended that the term ``facilities''
be defined and included within DFARS Part 245.
DoD Response: The term ``facilities'' is defined in DoD Directive
4275.5, Acquisition and Management of Industrial Resources. The rule
contains a reference to Directive 4275.5 in Subpart 237.75.
3. Comment: One respondent suggested the addition of text at
245.105 to specify that the administrative contracting officer will
perform property administration in the absence of an assigned property
administrator.
DoD Response: DoD considers the additional text unnecessary, since
the performance of contract property administration is already a
contracting officer function listed in FAR 42.302(26). However, for
clarity, the term ``property administrator'' has been revised to
``assigned property administrator'' at 245.105.
4. Comment: One respondent stated that the proposed text at
245.301(2) elevates the level of approval required for certain non-
Government use of Government-owned equipment beyond that specified in
the FAR, since FAR 45.301 assigns this responsibility to the head of
the contracting activity whereas the proposed DFARS rule requires
assistant Secretary or agency head approval.
DoD Response: This text has been excluded from the final rule. FAR
45.301 adequately addresses use and rental policy.
5. Comment: One respondent suggested the phrase ``only if'' be
replaced with the term ``provided'' at DFARS 245.302(1)(i), with regard
to the conditions placed on contracting officer approval of contractor
use of Government property on work for foreign governments or
international organizations.
DoD Response: The text at DFARS 245.302(1)(i) has been revised to
replace the term ``only if'' with the term ``provided.'' Additionally,
to preserve contracting officer flexibility, the word ``shall'' has
been replaced with the word ``may'' in that same paragraph.
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 makes no significant change to DoD policy regarding
the management of Government property in the possession of contractors.
C. Paperwork Reduction Act
The information collection requirements of DFARS Part 245 have been
approved by the Office of Management and Budget under Control Number
0704-0246.
List of Subjects in 48 CFR Parts 204, 236, 237, 239, 245, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 204, 236, 237, 239, 245, and 252 are amended as
follows:
0
1. The authority citation for 48 CFR Parts 204, 236, 237, 239, 245, 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 204.7003 is amended as follows:
0
a. In paragraph (a)(3)(iii) by removing ``facilities contracts,''; and
0
b. By revising paragraph (a)(3)(v) to read as follows:
204.7003 Basic PII number.
(a) * * *
(3) * * *
(v) Reserved--E
* * * * *
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
3. Section 236.275 is added to read as follows:
236.275 Construction of industrial resources.
See Subpart 237.75 for policy relating to facilities projects.
PART 237--SERVICE CONTRACTING
0
4. Section 237.7003 is amended by revising paragraph (c) to read as
follows:
237.7003 Solicitation provisions and contract clauses.
* * * * *
(c) Use the clause at FAR 52.245-1, Government Property, with its
Alternate I, in solicitations and contracts that include port of entry
requirements.
0
5. Subpart 237.75 is added to read as follows:
Subpart 237.75--Acquisition and Management of Industrial Resources
Sec.
237.7501 Definition.
237.7502 Policy.
Subpart 237.75--Acquisition and Management of Industrial Resources
237.7501 Definition.
Facilities project, as used in this subpart, means a Government
project to provide, modernize, or replace real property for use by a
contractor in performing a Government contract or subcontract.
237.7502 Policy.
(a) Comply with DoD Directive 4275.5, Acquisition and Management of
Industrial Resources, in processing requests for facilities projects.
[[Page 37647]]
(b) Departments and agencies shall submit reports of facilities
projects to the House and Senate Armed Services Committees--
(1) At least 30 days before starting facilities projects involving
real property (10 U.S.C. 2662); and
(2) In advance of starting construction for a facilities project
regardless of cost. Use DD Form 1391, FY---- Military Construction
Project Data, to notify congressional committees of projects that are
not included in the annual budget.
PART 239--ACQUISITION OF INFORMATION TECHNOLOGY
0
6. Section 239.7402 is amended by revising paragraphs (b)(3) and (4) to
read as follows:
239.7402 Policy.
* * * * *
(b) * * *
(3) Except as provided in paragraph (b)(4) of this section,
contractors and subcontractors shall normally provide all required
property, to include telecommunications security equipment or related
devices, in accordance with FAR 45.102. In some cases, such as for
communications security (COMSEC) equipment designated as controlled
cryptographic item (CCI), contractors or subcontractors must also meet
ownership eligibility conditions.
(4) The head of the agency may authorize provision of the necessary
property as Government-furnished property or acquisition as contractor-
acquired property, as long as conditions of FAR 45.102(b) are met.
* * * * *
PART 245--GOVERNMENT PROPERTY
0
7. Subparts 245.1 and 245.3 are revised to read as follows:
Subpart 245.1--General
Sec.
245.101 Definitions.
245.102 Policy.
245.105 Contractor's property management system compliance.
245.107-70 Contract clause.
Subpart 245.1--General
245.101 Definitions.
Mapping, charting, and geodesy property, as used in this subpart,
is defined in the clause at 252.245-7000, Government-Furnished Mapping,
Charting, and Geodesy Property.
245.102 Policy.
(1) Mapping, charting, and geodesy property. All Government-
furnished mapping, charting, and geodesy (MC&G) property is under the
control of the Director, National Geospatial Intelligence Agency.
(i) MC&G property shall not be duplicated, copied, or otherwise
reproduced for purposes other than those necessary for contract
performance.
(ii) Upon completion of contract performance, the contracting
officer shall--
(A) Contact the Director, National Geospatial Intelligence Agency,
4600 Sangamore Road, Bethesda, MD 20816-5003, for disposition
instructions;
(B) Direct the contractor to destroy or return all Government-
furnished MC&G property not consumed during contract performance; and
(C) Specify the destination and means of shipment for property to
be returned to the Government.
(2) Government supply sources. When a contractor will be
responsible for preparing requisitioning documentation to acquire
Government-furnished property from Government supply sources, include
in the contract the requirement to prepare the documentation in
accordance with DoD 4000.25-1-M, Military Standard Requisitioning and
Issue Procedures (MILSTRIP). Copies are available from the address
cited at PGI 251.102.
(3) Acquisition and management of industrial resources. See Subpart
237.75 for policy relating to facilities projects.
245.105 Contractor's property management system compliance.
The assigned property administrator shall perform property
administration in accordance with department or agency procedures.
245.107-70 Contract clause.
Use the clause at 252.245-7000, Government-Furnished Mapping,
Charting, and Geodesy Property, in solicitations and contracts when
mapping, charting, and geodesy property is to be furnished.
Subpart 245.3--Authorizing the Use and Rental of Government
Property
245.302 Contracts with foreign governments or international
organizations.
(1) General.
(i) Approval. A contractor may use Government property on work for
foreign governments and international organizations only when approved
in writing by the contracting officer having cognizance of the
property. The contracting officer may grant approval, provided--
(A) The use will not interfere with foreseeable requirements of the
United States;
(B) The work is undertaken as a DoD foreign military sale; or
(C) For a direct commercial sale, the foreign country or
international organization would be authorized to contract with the
department concerned under the Arms Export Control Act.
(ii) Use charges.
(A) The Use and Charges clause is applicable on direct commercial
sales to foreign governments or international organizations.
(B) When a particular foreign government or international
organization has funded the acquisition of property, do not assess the
foreign government or international organization rental charges or
nonrecurring recoupments for the use of such property.
(2) Special tooling and special test equipment.
(i) DoD normally recovers a fair share of nonrecurring costs of
special tooling and special test equipment by including these costs in
its calculation of the nonrecurring cost recoupment charge when major
defense equipment is sold by foreign military sales or direct
commercial sales to foreign governments or international organizations.
``Major defense equipment'' is defined in DoD Directive 2140.2,
Recoupment of Nonrecurring Costs on Sales of U.S. Items, as any item of
significant military equipment on the United States Munitions List
having a nonrecurring research, development, test, and evaluation cost
of more than $50 million or a total production cost of more than $200
million.
(ii) When the cost thresholds in paragraph (2)(i) of this section
are not met, the contracting officer shall assess rental charges for
use of special tooling and special test equipment pursuant to the Use
and Charges clause if administratively practicable.
(3) Waivers.
(i) Rental charges for use of U.S. production and research property
on commercial sales transactions to the Government of Canada are waived
for all commercial contracts. This waiver is based on an understanding
wherein the Government of Canada has agreed to waive its rental
charges.
(ii) Requests for waiver or reduction of charges for the use of
Government property on work for foreign governments or international
organizations shall be submitted to the contracting officer, who shall
refer the matter through contracting channels. In response to these
requests, approvals may be granted only by the Director, Defense
Security Cooperation Agency, for particular sales that are consistent
with paragraph (1)(i)(C) of this section.
[[Page 37648]]
Subparts 245.4 and 245.5 [Removed]
0
8. Subparts 245.4 and 245.5 are removed.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.217-7005 [Amended]
0
9. Section 252.217-7005 is amended as follows:
0
a. By revising the clause date to read ``(JUL 2009)''; and
0
b. In paragraph (e)(7) by removing ``(Fixed-Price Contracts)''.
252.217-7010 [Amended]
0
10. Section 252.217-7010 is amended as follows:
0
a. By revising the clause date to read ``(JUL 2009)''; and
0
b. In paragraph (c)(3) by removing ``(Fixed Price Contracts)''.
252.242-7004 [Amended]
0
11. Section 252.242-7004 is amended as follows:
0
a. By revising the clause date to read ``(JUL 2009)''; and
0
b. In paragraph (e)(9) introductory text, in the first sentence, by
removing ``Regardless of the provisions of FAR 45.505-3(f)(1)(ii),
have'' and adding in its place ``Have''.
252.245-7000 [Amended]
0
12. Section 252.245-7000 is amended in the introductory text by
removing ``245.310-70'' and adding in its place ``245.107-70''.
[FR Doc. E9-17954 Filed 7-28-09; 8:45 am]
BILLING CODE 5001-08-P
