Defense Federal Acquisition Regulation Supplement (DFARS); Electronic Ordering Procedures (DFARS Case 2009-D037), 25566-25568 [2011-10967]
Download as PDF
25566
Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules and Regulations
possibly adding coverage in DFARS part
242 relating to contract administration.
Response: DoD has added a cross
reference to FAR 37.104(d) at DFARS
237.503. In this final rule, no changes
are made to DFARS subpart 242.
E. Editorial Recommendations
Comment: A respondent proposed
several clarifying edits. The respondent
suggested moving some coverage from
DFARS 237.503 to DFARS 237.104 and
providing additional cross references.
The respondent also proposed to revise
the title of the form at PGI 237.503(c).
Response: Some of these
recommendations have been
accommodated in the changes noted
above and as follows:
• New coverage at DFARS 237.104(d)
has been added to point readers to the
section entitled ‘‘Agency-head
responsibilities’’ at DFARS 237.503 to
ensure awareness of the certification
requirement.
• The title of the certification at PGI
237.503(c) has been changed to
‘‘Certification of Nonpersonal Services.’’
jlentini on DSKJ8SOYB1PROD with RULES
III. Executive Order 12866 and
Executive Order 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated a ‘‘significant
regulatory action’’ although not
economically significant, under section
3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed
by the Office of Management and
Budget. This rule is not a major rule
under 5 U.S.C. 804.
IV. 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 change solely impacts
internal Government operating
procedures and will therefore not have
a significant cost or administrative
impact on contractors, subcontractors,
or offerors. An initial regulatory
flexibility analysis was not performed.
No comments were received from small
entities on this rule.
VerDate Mar<15>2010
16:41 May 04, 2011
Jkt 223001
V. Paperwork Reduction Act
The final rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 211 and
237
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations
System.
Therefore, the Defense Acquisition
Regulations system confirms as final the
interim rule published at 75 FR 54524
on September 8, 2010, with the
following changes:
■ 1. The authority citation for 48 CFR
parts 211 and 237 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 211—DESCRIBING AGENCY
NEEDS
2. Revise section 211.106 to read as
follows:
■
211.106 Purchase descriptions for service
contracts.
Agencies shall require that purchase
descriptions for service contracts and
resulting requirements documents, such
as statements of work or performance
work statements, include language to
provide a clear distinction between
Government employees and contractor
employees. Agencies shall be guided by
the characteristics and descriptive
elements of personal-services contracts
at FAR 37.104. Service contracts shall
require contractor employees to identify
themselves as contractor personnel by
introducing themselves or being
introduced as contractor personnel and
displaying distinguishing badges or
other visible identification for meetings
with Government personnel. In
addition, contracts shall require
contractor personnel to appropriately
identify themselves as contractor
employees in telephone conversations
and in formal and informal written
correspondence.
PART 237—SERVICE CONTRACTING
3. Amend section 237.104 by adding
paragraph (d) as follows:
■
237.104
Personal services contracts.
*
*
*
*
*
(d) See 237.503(c) for requirements for
certification and approval of
requirements for services to prevent
PO 00000
Frm 00034
Fmt 4700
Sfmt 4700
contracts from being awarded or
administered in a manner that
constitutes an unauthorized personal
services contract.
*
*
*
*
*
■ 4. Revise section 237.503 to read as
follows:
237.503
Agency-head responsibilities.
(c) The agency head or designee shall
employ procedures to ensure that
requirements for service contracts are
vetted and approved as a safeguard to
prevent contracts from being awarded or
administered in a manner that
constitutes an unauthorized personal
services contract. Contracting officers
shall follow the procedures at PGI
237.503, include substantially similar
certifications in conjunction with
service contract requirements, and place
the certification in the contract file. The
program manager or other official
responsible for the requirement, at a
level specified by the agency, should
execute the certification. In addition,
contracting officers and program
managers should remain aware of the
descriptive elements at FAR 37.104(d)
to ensure that a service contract does
not inadvertently become administered
as a personal-services contract.
[FR Doc. 2011–10878 Filed 5–4–11; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 216 and 252
RIN 0750–AH20
Defense Federal Acquisition
Regulation Supplement (DFARS);
Electronic Ordering Procedures
(DFARS Case 2009–D037)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule to
amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to
address electronic business procedures
for placing orders. This final rule adds
a new DFARS clause to clarify this
process.
SUMMARY:
Effective date: May 5, 2011.
FOR FURTHER INFORMATION CONTACT: Mr.
Julian Thrash, Telephone 703–602–
0310.
DATES:
SUPPLEMENTARY INFORMATION:
E:\FR\FM\05MYR1.SGM
05MYR1
Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules and Regulations
I. Background
DoD published a proposed rule in the
Federal Register at 75 FR 60690, on
October 1, 2010. This case establishes a
standard method for the issuance of
orders via electronic means. DoD
currently has the capability to distribute
orders electronically on a routine basis
and can post to a Web site that any
contractor can access. In order to make
this possible, the DFARS needs to
provide language that will make those
procedures a routine part of contract
order distribution. This will enable DoD
to further the goals of the E-Government
Act of 2002 (Pub. L. 107–347).
The public comment period closed
November 30, 2010. Five respondents
submitted comments to the proposed
rule, which are addressed below.
II. Discussion and Analysis
A. Effective Way To Do Business
Comment: One respondent opined
that requiring vendors and the
Government to communicate
exclusively via electronic means will be
the most effective way for the
Government to do business in the
future.
Response: Concur this could be the
most effective way to communicate,
however, e-mail and facsimile will
continue to be permitted as a means of
communication.
jlentini on DSKJ8SOYB1PROD with RULES
B. Elements of an Order
Comment: One respondent expressed
concern that many elements of an order
are not universal, and are not
automatically posted to the Electronic
Document Access (EDA) system from
the contract writing systems (i.e.,
attachments and appendices). The
respondent opined that ordering
officials would thus be forced to either
use e-mail to get some elements of the
order to the contractor or, alternatively,
to manually replace the automatically
uploaded documents in EDA with
manually compiled complete
documents. The respondent suggested
that neither approach would be
efficient.
Response: As a matter of policy, DoD
already requires posting of the contract
or order, including its attachments, to
EDA. This rule merely leverages that
existing requirement to codify rules for
electronic issuance of orders. Use of
e-mail will not be necessary.
C. Use of E-Mail
Comment: A respondent questioned
whether it is wise to take e-mail totally
off the table, when FAR 52.216–18,
Ordering, currently permits ordering
officials to specify e-mail as an
VerDate Mar<15>2010
16:41 May 04, 2011
Jkt 223001
‘‘electronic commerce method’’ so long
as it is authorized in the schedule. The
respondent recommended that the
DFARS clause should explicitly permit
the use of e-mail as a recognized
electronic commerce method. The
respondent recommended, in the
alternative, that the Government permit
the use of e-mail on a ‘‘by-exception
basis’’ or at the discretion of the
contracting officer.
Response: DoD considered the use of
e-mail as a primary method of
distribution, but rejected its use because
of the lack of an audit trail. DoD was
also concerned that the delivery and
receipt of e-mail is subject to
interruption without notice due to
firewall and spam filter configurations.
D. Changes to 252.216–70XX(c)(1),
Ordering
Comment: A respondent suggested
that the term ‘‘notice’’ in 252.216–
70XX(c)(1), Ordering, should be
defined. Another respondent stated the
final rule should be clearer about who
in the company will be receiving the
awards to reduce the possibility for
miscommunication. Another respondent
stated that electronic commerce is a
term specifically identified in Federal
Acquisition Regulation (FAR) Part 2,
and is broader than just the EDA, which
is not defined in the FAR or DFARS.
The respondent further stated that
limiting the Government’s electronic
communication options to the EDA only
will prevent ordering officials from
using other means of electronic
commerce in the event EDA is not
accessible (e.g., system is down or
contingency contracting where EDA
may not be available), and that use of
the broader term ‘‘electronic commerce’’
would allow for the flexibility to adopt
the use of new methods of electronic
communication as they arise.
Response: Contract load notification
lists can be set up in EDA for a specific
contract or delivery order. Each contract
or delivery order requires its own
notification list. Notification lists may
be created for contracts that do not yet
exist in EDA. When a contract loads into
EDA, the notification process activates
and EDA e-mails the notification to the
addresses on the lists. Notification
e-mail messages are sent once per day.
Therefore, it is not necessary to define
what constitutes a notice.
DoD has chosen EDA as its primary
means of establishing an official shared
copy of the contract. This case leverages
that decision. This case is not intended
to prohibit the use of other electronic
commerce tools to transmit data about
the contract, but only to address EDA as
the location of the document.
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
25567
E. Encryption
Comment: A respondent suggested
that DoD should allow for an alternate
means of electronic communication that
provides for secure transmission of files
(such as deliverables, reports, financial,
and Privacy Act data) back to the issuer.
The respondent further stated that email is a very simple, widespread, and
known technology, and that many
regulations require strong encryption
when sending sensitive (controlled
unclassified information, personally
identifiable information, etc.) data over
the internet. The respondent
recommended that DoD should be
encrypting files before transmitting
them, and that including (in the clause)
the option to use e-mail would set the
stage for enhanced, electronic
communications between DoD and its
many small contractors, via the
Internet’s ubiquitous direct
communication tool.
Response: EDA shares data using
secure hypertext transfer protocol
(https), which encrypts all data in
transit, and is universally used by both
industry and Government to protect
sensitive data. EDA fulfills DoD’s
requirement for the secure transmission
of data.
F. Registration in EDA
Comment: A respondent asked
whether contractor registration in EDA
will eventually become mandatory like
Central Contractor Registration (CCR)
(i.e., a pre-condition for receiving a
contract). The respondent went on to
suggest that DoD would have a difficult
time getting industry (and particularly
small businesses) to use EDA without a
mandatory registration requirement.
Response: An implicit condition of
this ordering clause is that vendors who
wish to receive notice of electronic
orders must create an account in EDA.
In order to create an account, the vendor
must know the Commercial and
Government Entity (CAGE) or the Data
Universal Numbering System (DUNS)
number for the business unit, and
specify it in their EDA registration. The
electronic business point of contact for
that CAGE/DUNS as identified in CCR
must authorize, via e-mail, the applicant
for the EDA vendor user account as
someone who may access documents for
that CAGE/DUNS.
G. Access to EDA
Comment: A respondent noted that
there is a general lag between the time
when an order is released in the
contract writing system, and the time
when it is available in EDA, and that
this is a practical downside of not
E:\FR\FM\05MYR1.SGM
05MYR1
25568
Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules and Regulations
permitting the use of e-mail to issue
orders. Two respondents expressed
concern that there may be occasions
when contractors cannot readily gain
access to EDA or that there may be
contractors who object to registering in
the EDA system.
Response: Historical data shows that,
on average, actions are posted to EDA
within one to two days. This average
compares very favorably with the
averages associated with mailing or any
other distribution process. There are
two EDA sites, one at https://
eda.ogden.disa.mil/, and the other at
https://eda.cols.disa.mil/, to ensure
connectivity. These two sites allow for
an overall 99.1% average system
availability. EDA is a very reliable
means of conducting DoD’s business,
and the issue of EDA nonavailability is
not considered significant.
jlentini on DSKJ8SOYB1PROD with RULES
H. Exceptions
Comment: A respondent
recommended striking facsimile and
mail as acceptable methods of issuing
orders in order to more firmly promote
the use of electronic business.
Response: The objective of the case is
not to eliminate paper methods but to
establish a regular process for electronic
methods.
DoD has considered the public
comments, and has decided to make no
major changes to the text that was
proposed in the Federal Register at 75
FR 60690, on October 1, 2010. However,
there is one small change made at
216.506(a), where the name ‘‘Ordering’’
was added to the clause prescription as
the title for FAR 52.216–18. This final
rule makes the following DFARS
changes:
• Adds DFARS 216.506(a) to require
a new clause 252.216–7006, Ordering,
in lieu of the clause at 52.216–18,
Ordering, in solicitations, and contracts
when a definite-quantity contract, a
requirements contract, or an indefinitequantity contract is contemplated; and
• Add a new clause at DFARS
252.216–7006, Ordering.
III. Executive Order 12866 and
Executive Order 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
VerDate Mar<15>2010
16:41 May 04, 2011
Jkt 223001
and of promoting flexibility. This is not
a significant regulatory action and,
therefore, was not subject to review
under Section 6(b) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD has prepared a final regulatory
flexibility analysis consistent with 5
U.S.C. 604 and is summarized below. A
copy of the analysis may be obtained
from the point of contact specified
herein.
The objective of this rule is to
establish a standard method for
distributing orders via electronic means.
DoD currently has the capability to
distribute orders electronically on a
routine basis, and posts those orders to
a Web site that any contractor can
access.
This DFARS change will provide
standard contract language that will
make those order distribution
procedures a routine part of contract
order placement. This rule will enable
DoD to further the goals of the
E-Government Act of 2002.
For Fiscal Year 2009, DoD made
awards to 6,097 small business unique
Data Universal Numbering System
(DUNS) numbers using the clause at
FAR 52.216–18, Ordering. The benefit of
this rule to small business is that it will
make electronic distribution procedures
a routine part of order issuance. This
change will ultimately help improve the
management, and promotion of
electronic Government services and
processes, and will establish a
framework to improve public access to
Government information, and services.
This rule was published as a proposed
rule in the Federal Register at 75 FR
60690, on October 1, 2010. No
comments were received from small
entities on the affected DFARS subpart
with regard to small businesses. We
anticipate that there will be limited, if
any, additional costs imposed on small
businesses.
V. Paperwork Reduction Act
This rule does not impose any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
PO 00000
List of Subjects in 48 CFR Parts 216 and
252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 216 and 252
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 216 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 216—TYPES OF CONTRACTS
2. Amend section 216.506 by adding
paragraph (a) to read as set forth below.
■
216.506 Solicitation provisions and
contract clauses.
(a) Insert the clause at 252.216–7006,
Ordering, in lieu of the clause at
52.216–18, Ordering, in solicitations
and contracts when a definite-quantity
contract, a requirements contract, or an
indefinite-quantity contract is
contemplated.
*
*
*
*
*
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
3. Add section 252.216–7006 to read
as follows:
■
252.216–7006
Ordering.
As prescribed in 216.506(a), use the
following clause:
ORDERING (MAY 2011)
(a) Any supplies and services to be
furnished under this contract shall be
ordered by issuance of delivery orders or task
orders by the individuals or activities
designated in the contract schedule. Such
orders may be issued from
llllllllll through
llllllllllll [insert dates].
(b) All delivery orders or task orders are
subject to the terms and conditions of this
contract. In the event of conflict between a
delivery order or task order and this contract,
the contract shall control.
(c)(1) If issued electronically, the order is
considered ‘‘issued’’ when a copy has been
posted to the Electronic Document Access
system, and notice has been sent to the
Contractor.
(2) If mailed or transmitted by facsimile, a
delivery order or task order is considered
‘‘issued’’ when the Government deposits the
order in the mail or transmits by facsimile.
Mailing includes transmittal by U.S. mail or
private delivery services.
(3) Orders may be issued orally only if
authorized in the schedule.
(End of Clause)
[FR Doc. 2011–10967 Filed 5–4–11; 8:45 am]
BILLING CODE 5001–08–P
Frm 00036
Fmt 4700
Sfmt 9990
E:\FR\FM\05MYR1.SGM
05MYR1
Agencies
[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 25566-25568]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10967]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 216 and 252
RIN 0750-AH20
Defense Federal Acquisition Regulation Supplement (DFARS);
Electronic Ordering Procedures (DFARS Case 2009-D037)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to address electronic
business procedures for placing orders. This final rule adds a new
DFARS clause to clarify this process.
DATES: Effective date: May 5, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Julian Thrash, Telephone 703-602-
0310.
SUPPLEMENTARY INFORMATION:
[[Page 25567]]
I. Background
DoD published a proposed rule in the Federal Register at 75 FR
60690, on October 1, 2010. This case establishes a standard method for
the issuance of orders via electronic means. DoD currently has the
capability to distribute orders electronically on a routine basis and
can post to a Web site that any contractor can access. In order to make
this possible, the DFARS needs to provide language that will make those
procedures a routine part of contract order distribution. This will
enable DoD to further the goals of the E-Government Act of 2002 (Pub.
L. 107-347).
The public comment period closed November 30, 2010. Five
respondents submitted comments to the proposed rule, which are
addressed below.
II. Discussion and Analysis
A. Effective Way To Do Business
Comment: One respondent opined that requiring vendors and the
Government to communicate exclusively via electronic means will be the
most effective way for the Government to do business in the future.
Response: Concur this could be the most effective way to
communicate, however, e-mail and facsimile will continue to be
permitted as a means of communication.
B. Elements of an Order
Comment: One respondent expressed concern that many elements of an
order are not universal, and are not automatically posted to the
Electronic Document Access (EDA) system from the contract writing
systems (i.e., attachments and appendices). The respondent opined that
ordering officials would thus be forced to either use e-mail to get
some elements of the order to the contractor or, alternatively, to
manually replace the automatically uploaded documents in EDA with
manually compiled complete documents. The respondent suggested that
neither approach would be efficient.
Response: As a matter of policy, DoD already requires posting of
the contract or order, including its attachments, to EDA. This rule
merely leverages that existing requirement to codify rules for
electronic issuance of orders. Use of e-mail will not be necessary.
C. Use of E-Mail
Comment: A respondent questioned whether it is wise to take e-mail
totally off the table, when FAR 52.216-18, Ordering, currently permits
ordering officials to specify e-mail as an ``electronic commerce
method'' so long as it is authorized in the schedule. The respondent
recommended that the DFARS clause should explicitly permit the use of
e-mail as a recognized electronic commerce method. The respondent
recommended, in the alternative, that the Government permit the use of
e-mail on a ``by-exception basis'' or at the discretion of the
contracting officer.
Response: DoD considered the use of e-mail as a primary method of
distribution, but rejected its use because of the lack of an audit
trail. DoD was also concerned that the delivery and receipt of e-mail
is subject to interruption without notice due to firewall and spam
filter configurations.
D. Changes to 252.216-70XX(c)(1), Ordering
Comment: A respondent suggested that the term ``notice'' in
252.216-70XX(c)(1), Ordering, should be defined. Another respondent
stated the final rule should be clearer about who in the company will
be receiving the awards to reduce the possibility for miscommunication.
Another respondent stated that electronic commerce is a term
specifically identified in Federal Acquisition Regulation (FAR) Part 2,
and is broader than just the EDA, which is not defined in the FAR or
DFARS. The respondent further stated that limiting the Government's
electronic communication options to the EDA only will prevent ordering
officials from using other means of electronic commerce in the event
EDA is not accessible (e.g., system is down or contingency contracting
where EDA may not be available), and that use of the broader term
``electronic commerce'' would allow for the flexibility to adopt the
use of new methods of electronic communication as they arise.
Response: Contract load notification lists can be set up in EDA for
a specific contract or delivery order. Each contract or delivery order
requires its own notification list. Notification lists may be created
for contracts that do not yet exist in EDA. When a contract loads into
EDA, the notification process activates and EDA e-mails the
notification to the addresses on the lists. Notification e-mail
messages are sent once per day. Therefore, it is not necessary to
define what constitutes a notice.
DoD has chosen EDA as its primary means of establishing an official
shared copy of the contract. This case leverages that decision. This
case is not intended to prohibit the use of other electronic commerce
tools to transmit data about the contract, but only to address EDA as
the location of the document.
E. Encryption
Comment: A respondent suggested that DoD should allow for an
alternate means of electronic communication that provides for secure
transmission of files (such as deliverables, reports, financial, and
Privacy Act data) back to the issuer. The respondent further stated
that e-mail is a very simple, widespread, and known technology, and
that many regulations require strong encryption when sending sensitive
(controlled unclassified information, personally identifiable
information, etc.) data over the internet. The respondent recommended
that DoD should be encrypting files before transmitting them, and that
including (in the clause) the option to use e-mail would set the stage
for enhanced, electronic communications between DoD and its many small
contractors, via the Internet's ubiquitous direct communication tool.
Response: EDA shares data using secure hypertext transfer protocol
(https), which encrypts all data in transit, and is universally used by
both industry and Government to protect sensitive data. EDA fulfills
DoD's requirement for the secure transmission of data.
F. Registration in EDA
Comment: A respondent asked whether contractor registration in EDA
will eventually become mandatory like Central Contractor Registration
(CCR) (i.e., a pre-condition for receiving a contract). The respondent
went on to suggest that DoD would have a difficult time getting
industry (and particularly small businesses) to use EDA without a
mandatory registration requirement.
Response: An implicit condition of this ordering clause is that
vendors who wish to receive notice of electronic orders must create an
account in EDA. In order to create an account, the vendor must know the
Commercial and Government Entity (CAGE) or the Data Universal Numbering
System (DUNS) number for the business unit, and specify it in their EDA
registration. The electronic business point of contact for that CAGE/
DUNS as identified in CCR must authorize, via e-mail, the applicant for
the EDA vendor user account as someone who may access documents for
that CAGE/DUNS.
G. Access to EDA
Comment: A respondent noted that there is a general lag between the
time when an order is released in the contract writing system, and the
time when it is available in EDA, and that this is a practical downside
of not
[[Page 25568]]
permitting the use of e-mail to issue orders. Two respondents expressed
concern that there may be occasions when contractors cannot readily
gain access to EDA or that there may be contractors who object to
registering in the EDA system.
Response: Historical data shows that, on average, actions are
posted to EDA within one to two days. This average compares very
favorably with the averages associated with mailing or any other
distribution process. There are two EDA sites, one at https://eda.ogden.disa.mil/, and the other at https://eda.cols.disa.mil/, to
ensure connectivity. These two sites allow for an overall 99.1% average
system availability. EDA is a very reliable means of conducting DoD's
business, and the issue of EDA nonavailability is not considered
significant.
H. Exceptions
Comment: A respondent recommended striking facsimile and mail as
acceptable methods of issuing orders in order to more firmly promote
the use of electronic business.
Response: The objective of the case is not to eliminate paper
methods but to establish a regular process for electronic methods.
DoD has considered the public comments, and has decided to make no
major changes to the text that was proposed in the Federal Register at
75 FR 60690, on October 1, 2010. However, there is one small change
made at 216.506(a), where the name ``Ordering'' was added to the clause
prescription as the title for FAR 52.216-18. This final rule makes the
following DFARS changes:
Adds DFARS 216.506(a) to require a new clause 252.216-
7006, Ordering, in lieu of the clause at 52.216-18, Ordering, in
solicitations, and contracts when a definite-quantity contract, a
requirements contract, or an indefinite-quantity contract is
contemplated; and
Add a new clause at DFARS 252.216-7006, Ordering.
III. Executive Order 12866 and Executive Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This is not a significant regulatory action and,
therefore, was not subject to review under Section 6(b) of Executive
Order 12866, Regulatory Planning and Review, dated September 30, 1993.
This rule is not a major rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD has prepared a final regulatory flexibility analysis consistent
with 5 U.S.C. 604 and is summarized below. A copy of the analysis may
be obtained from the point of contact specified herein.
The objective of this rule is to establish a standard method for
distributing orders via electronic means. DoD currently has the
capability to distribute orders electronically on a routine basis, and
posts those orders to a Web site that any contractor can access.
This DFARS change will provide standard contract language that will
make those order distribution procedures a routine part of contract
order placement. This rule will enable DoD to further the goals of the
E-Government Act of 2002.
For Fiscal Year 2009, DoD made awards to 6,097 small business
unique Data Universal Numbering System (DUNS) numbers using the clause
at FAR 52.216-18, Ordering. The benefit of this rule to small business
is that it will make electronic distribution procedures a routine part
of order issuance. This change will ultimately help improve the
management, and promotion of electronic Government services and
processes, and will establish a framework to improve public access to
Government information, and services.
This rule was published as a proposed rule in the Federal Register
at 75 FR 60690, on October 1, 2010. No comments were received from
small entities on the affected DFARS subpart with regard to small
businesses. We anticipate that there will be limited, if any,
additional costs imposed on small businesses.
V. Paperwork Reduction Act
This rule does not impose any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 216 and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 216 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 216 and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 216--TYPES OF CONTRACTS
0
2. Amend section 216.506 by adding paragraph (a) to read as set forth
below.
216.506 Solicitation provisions and contract clauses.
(a) Insert the clause at 252.216-7006, Ordering, in lieu of the
clause at 52.216-18, Ordering, in solicitations and contracts when a
definite-quantity contract, a requirements contract, or an indefinite-
quantity contract is contemplated.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Add section 252.216-7006 to read as follows:
252.216-7006 Ordering.
As prescribed in 216.506(a), use the following clause:
ORDERING (MAY 2011)
(a) Any supplies and services to be furnished under this
contract shall be ordered by issuance of delivery orders or task
orders by the individuals or activities designated in the contract
schedule. Such orders may be issued from --------------------
through ------------------------ [insert dates].
(b) All delivery orders or task orders are subject to the terms
and conditions of this contract. In the event of conflict between a
delivery order or task order and this contract, the contract shall
control.
(c)(1) If issued electronically, the order is considered
``issued'' when a copy has been posted to the Electronic Document
Access system, and notice has been sent to the Contractor.
(2) If mailed or transmitted by facsimile, a delivery order or
task order is considered ``issued'' when the Government deposits the
order in the mail or transmits by facsimile. Mailing includes
transmittal by U.S. mail or private delivery services.
(3) Orders may be issued orally only if authorized in the
schedule.
(End of Clause)
[FR Doc. 2011-10967 Filed 5-4-11; 8:45 am]
BILLING CODE 5001-08-P