Defense Federal Acquisition Regulation Supplement: Separation of Combined Provisions and Clauses (DFARS Case 2011-D048), 19128-19131 [2012-7559]
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19128
Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Rules and Regulations
overseas for reasons of safety and
security and will allow personnel to
move to work locations necessary to
achieve the mission of the United States
military worldwide, including support
of overseas contingency operations.
However, pursuant to 41 U.S.C. 1707
and FAR 1.501–3(b), DoD will consider
public comments received in response
to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Parts 201 and
212
Government procurement.
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
Defense Acquisition Regulations
System
48 CFR Part 203
48 CFR Parts 204, 209, 216, 229, and
252
Defense Federal Acquisition
Regulation Supplement; Technical
Amendment
AGENCY:
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
Defense Federal Acquisition
Regulation Supplement: Separation of
Combined Provisions and Clauses
(DFARS Case 2011–D048)
DoD is making a technical
amendment to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to add a reference for reporting
suspected lobbying violations.
DATES: Effective Date: March 30, 2012.
FOR FURTHER INFORMATION CONTACT: Ms.
Ynette R. Shelkin, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), Room 3B855, 3060
Defense Pentagon, Washington, DC
20301–3060. Telephone 571–372–6089;
facsimile 571–372–6101.
SUPPLEMENTARY INFORMATION: This final
rule amends the DFARS by adding text
at 203.806 to provide guidance to
explain how and where to report
violations or potential violations of the
Lobbying Disclosure Act (31 U.S.C.
1352).
AGENCY:
SUMMARY:
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 201 and 212
are amended as follows:
PART 201—FEDERAL ACQUISITION
REGULATIONS SYSTEM
1. The authority citation for 48 CFR
part 201 is revised to read as follows:
■
Authority: 41 U.S.C. 1303 and CFR
chapter 2.
2. Section 201.109 is amended to add
paragraph (a) to read as follows:
■
201.109 Statutory acquisition-related
dollar thresholds-adjustment for inflation.
(a) Section 814(b) of the National
Defense Authorization Act for Fiscal
Year 2012 (Pub. L. 112–81) requires that
the threshold established in 10 U.S.C.
2253(a)(2) for the acquisition of righthand drive passenger sedans be
included in the list of dollar thresholds
that are subject to adjustment for
inflation in accordance with the
requirements of 41 U.S.C. 1908, and is
adjusted pursuant to such provisions, as
appropriate.
*
*
*
*
*
PART 212— ACQUISITION OF
COMMERCIAL ITEMS
List of Subjects in 48 CFR Part 203
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 203 is
amended as follows:
PART 203—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
1. The authority citation for 48 CFR
part 203 is revised to read as follows:
■
3. The authority citation for 48 CFR
part 212 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 2.
Authority: 41 U.S.C. 1303 and CFR
chapter 2.
■
2. Add subpart 203.8 consisting of
section 203.806 to read as follows:
212.271 Limitation on acquisition of righthand drive passenger sedans.
Subpart 203.8—Limitations on the
Payment of Funds To Influence Federal
Transactions
■
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4. Section 212.271 is added to subpart
212.2 to read as follows:
10 U.S.C. 2253(a)(2) limits the
authority to purchase right-hand drive
passenger sedans to a cost of not more
than $40,000 per vehicle.
RIN 0750–AH38
203.806
Processing suspected violations.
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION:
Final rule.
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to separate provisions and
clauses that are currently combined in
order to be in compliance with DFARS
drafting conventions.
SUMMARY:
DATES:
Effective Date: March 30, 2012.
FOR FURTHER INFORMATION CONTACT:
Amy G. Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 76 FR 71922 on
November 21, 2011, to separate
provisions and clauses that are currently
combined in order to comply with
DFARS drafting conventions. A
provision is included only in the
solicitation, and generally includes
representations and certifications, to
which the offeror responds in its offer.
A contract clause is included in both the
solicitation and the resultant contract,
and provides the terms that apply
throughout contract performance. It is
inconsistent with DFARS drafting
conventions to combine a provision and
a clause in a single clause. This rule
removes the representations from the
following five DFARS clauses and
creates five new provisions to be used
in solicitations that include the
associated clauses:
Report suspected violations to the
address at PGI 203.8(a).
[FR Doc. 2012–7493 Filed 3–29–12; 8:45 am]
[FR Doc. 2012–7439 Filed 3–29–12; 8:45 am]
BILLING CODE 5001–06–P
BILLING CODE 5001–06–P
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19129
From DFARS clause
To new provision
252.209–7005, Reserve Officer Training Corps and Military Recruiting
on Campus.
252.216–7000, Economic Price Adjustment—Basic Steel, Aluminum,
Brass, Bronze, or Copper Mill Products.
252.216–7003, Economic Price Adjustment—Wage Rates or Material
Prices Controlled by a Foreign Government.
252.229–7003, Tax Exemptions (Italy) ....................................................
252.229–7005, Tax Exemptions (Spain) ..................................................
252.209–7003, Reserve Officer Training Corps and Military Recruiting
on Campus—Representation.
252.216–7007, Economic Price Adjustment—Basic Steel, Aluminum,
Brass, Bronze, or Copper Mill Products—Representation.
252.216–7008, Economic Price Adjustment—Wage Rates or Material
Prices Controlled by a Foreign Government—Representation.
252.229–7012, Tax Exemptions (Italy)—Representation.
252.229–7013, Tax Exemptions (Spain)—Representation.
Conforming changes are also required
to DFARS 252.204–7007, Alternate A,
Annual Representations and
Certifications, and the associated
prescriptions at DFARS 204.1202(2) to
list the new provisions in lieu of the
current DFARS clauses.
II. Discussion and Analysis of the
Public Comments
There were no public responses
submitted that pertained to the
proposed rule. Minor changes made to
the proposed rule include adding new
clause numbers and dates, edits to
section titles as required to reflect the
addition of new provisions, and minor
editorial and grammatical changes to
paragraph (a) of 252.229–7005, Tax
Exemptions (Spain).
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 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). E.O. 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
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
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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 it does not add any new
requirements—it only reformats existing
requirements of five clauses into
separate provisions and clauses.
V. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
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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 204,
209, 216, 229, and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 204, 209, 216,
229, and 252 are amended as follows:
■ 1. The authority citation for 48 CFR
parts 204, 209, 216, and 229 is revised
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 204—ADMINISTRATIVE
MATTERS
2. Amend section 204.1202 by
revising paragraphs (2)(ii), (iii), (iv), (xi),
and (xii) to read as follows:
■
204.1202
Solicitation provision.
*
*
*
*
*
(2) * * *
(ii) 252.209–7002, Disclosure of
Ownership or Control by a Foreign
Government.
(iii) 252.209–7003, Reserve Officer
Training Corps and Military Recruiting
on Campus—Representation.
(iv) 252.216–7008, Economic Price
Adjustment—Wage Rates or Material
Prices Controlled by a Foreign
Government—Representation.
*
*
*
*
*
(xi) 252.229–7012, Tax Exemptions
(Italy)—Representation.
(xii) 252.229–7013, Tax Exemptions
(Spain)—Representation.
PART 209—CONTRACTOR
QUALIFICATIONS
3. Revise section 209.470–4 to read as
follows:
■
209.470–4 Solicitation provision and
contract clause.
(a) Use the provision at 252.209–7003,
Reserve Officer Training Corps and
Military Recruiting on Campus—
Representation, in all solicitations with
institutions of higher education.
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(b) Use the clause at 252.209–7005,
Reserve Officer Training Corps and
Military Recruiting on Campus, in all
solicitations and contracts with
institutions of higher education.
PART 216—TYPES OF CONTRACTS
4. Amend section 216.203–4–70 by—
a. Revising the section heading; and
b. Revising paragraphs (a) and (c) to
read as follows:
■
■
■
216.203–4–70
clauses.
Additional provisions and
(a) Price adjustment for basic steel,
aluminum, brass, bronze, or copper mill
products. (1)(i) The price adjustment
clause at 252.216–7000, Economic Price
Adjustment—Basic Steel, Aluminum,
Brass, Bronze, or Copper Mill Products,
may be used in fixed-price supply
solicitations and contracts for basic
steel, aluminum, brass, bronze, or
copper mill products, such as sheets,
plates, and bars, when an established
catalog or market price exists for the
particular product being acquired.
(ii) The 10 percent figure in paragraph
(d)(1) of the clause shall not be
exceeded unless approval is obtained at
a level above the contracting officer.
(2) Use the price adjustment provision
at 252.216–7007, Economic Price
Adjustment—Basic Steel, Aluminum,
Brass, Bronze, or Copper Mill
Products—Representation, in
solicitations that include the clause at
252.216–7000, Economic Price
Adjustment—Basic Steel, Aluminum,
Brass, Bronze, or Copper Mill Products.
*
*
*
*
*
(c) Price adjustment for wage rates or
material prices controlled by a foreign
government. (1)(i) The price adjustment
clause at 252.216–7003, Economic Price
Adjustment—Wage Rates or Material
Prices Controlled by a Foreign
Government, may be used in fixed-price
supply and service solicitations and
contracts when—
(A) The contract is to be performed
wholly or in part in a foreign country;
and
(B) A foreign government controls
wage rates or material prices and may,
during contract performance, impose a
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mandatory change in wages or prices of
material.
(ii) Verify the base wage rates and
material prices prior to contract award
and prior to making any adjustment in
the contract price.
(2) Use the provision at 252.216–7008,
Economic Price Adjustment—Wage
Rates or Material Prices Controlled by a
Foreign Government—Representation,
in solicitations that include the clause
DFARS 252.216–7003, Economic Price
Adjustment—Wage Rates or Material
Prices Controlled by a Foreign
Government.
PART 229—TAXES
5. Amend section 229.402–70 by—
a. Revising the section heading; and
b. Revising paragraphs (c) and (e) to
read as follows:
■
■
■
229.402–70
clauses.
Additional provisions and
*
*
*
*
*
(c)(1) Use the clause at 252.229–7003,
Tax Exemptions (Italy), in solicitations
and contracts when contract
performance will be in Italy.
(2) Use the provision at 252.229–7012,
Tax Exemptions (Italy)—Representation,
in solicitations that contain the clause at
252.229–7003, Tax Exemptions (Italy).
*
*
*
*
*
(e)(1) Use the clause at 252.229–7005,
Tax Exemptions (Spain), in solicitations
and contracts when contract
performance will be in Spain.
(2) Use the provision at 252.229–7013,
Tax Exemptions (Spain)—
Representation, in solicitations that
contain the clause at 252.229–7005, Tax
Exemptions (Spain).
*
*
*
*
*
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
6. The authority citation for 48 CFR
part 252 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
7. Amend section 252.204–7007 by—
a. Amending the clause date by
removing ‘‘(NOV 2011)’’ and adding in
its place ‘‘(MAR 2012)’’; and
■ b. Revising paragraph (d)(1) to read as
follows:
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■
■
252.204–7007 Alternate A, Annual
Representations and Certifications.
*
*
*
*
*
(d)(1) The following representations
or certifications in ORCA are applicable
to this solicitation as indicated:
(i) 252.209–7001, Disclosure of
Ownership or Control by the
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Government of a Terrorist Country.
Applies to all solicitations expected to
result in contracts of $150,000 or more.
(ii) 252.209–7003, Reserve Officer
Training Corps and Military Recruiting
on Campus—Representation. Applies to
all solicitations with institutions of
higher education.
(iii) 252.216–7008, Economic Price
Adjustment—Wage Rates or Material
Prices Controlled by a Foreign
Government. Applies to solicitations for
fixed-price supply and service contracts
when the contract is to be performed
wholly or in part in a foreign country,
and a foreign government controls wage
rates or material prices and may during
contract performance impose a
mandatory change in wages or prices of
materials.
(iv) 252.225–7042, Authorization to
Perform. Applies to all solicitations
when performance will be wholly or in
part in a foreign country.
(v) 252.229–7012, Tax Exemptions
(Italy)—Representation. Applies to
solicitations when contract performance
will be in Italy.
(vi) 252.229–7013, Tax Exemptions
(Spain)—Representation. Applies to
solicitations when contract performance
will be in Spain.
*
*
*
*
*
■ 8. Add section 252.209–7003 to read
as follows:
252.209–7003 Reserve Officer Training
Corps and Military Recruiting on Campus–
Representation.
As prescribed in 209.470–4(a), use the
following provision:
RESERVE OFFICER TRAINING CORPS
AND MILITARY RECRUITING ON
CAMPUS—REPRESENTATION (MAR
2012)
(a) Definition. ‘‘Institution of higher
education,’’ as used in this provision, is
defined in the clause at 252.209–7005,
Reserve officer Training Corps and Military
Recruiting on Campus.
(b) Limitation on contract award. Except as
provided in paragraph (c) of this provision,
an institution of higher education is
ineligible for contract award if the Secretary
of Defense determines that the institution has
a current policy or practice (regardless of
when implemented) that prohibits or in effect
prevents—
(1) The Secretary of a military department
from maintaining, establishing, or operating
a unit of the Senior Reserve Officer Training
Corps (ROTC) (in accordance with 10 U.S.C.
654 and other applicable Federal laws) at that
institution;
(2) A student at that institution from
enrolling in a unit of the Senior ROTC at
another institution of higher education;
(3) The Secretary of a military department
or the Secretary of Transportation from
gaining entry to campuses, or access to
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students (who are 17 years of age or older)
on campuses, for purposes of military
recruiting; or
(4) Military recruiters from accessing, for
purposes of military recruiting, the following
information pertaining to students (who are
17 years of age or older) enrolled at that
institution:
(i) Name.
(ii) Address.
(iii) Telephone number.
(iv) Date and place of birth.
(v) Educational level.
(vi) Academic major.
(vii) Degrees received.
(viii) Most recent educational institution
enrollment.
(c) Exception. The limitation in paragraph
(b) of this provision does not apply to an
institution of higher education if the
Secretary of Defense determines that the
institution has a long-standing policy of
pacifism based on historical religious
affiliation.
(d) Representation. By submission of its
offer, the offeror represents that the
institution does not have any policy or
practice described in paragraph (b) of this
clause, unless the Secretary of Defense has
determined that the institution has a longstanding policy of pacifism based on
historical religious affiliation.
(End of provision)
■ 9. Amend section 252.209–7005 by—
■ a. Amending the introductory text by
removing ‘‘209.470–4’’ and adding in its
place ‘‘209.470–4(b)’’;
■ b. Amending the clause date by
removing ‘‘(JAN 2000)’’ and adding in
its place ‘‘(MAR 2012)’’;
■ c. Revising introductory text of
paragraph (b);
■ d. Removing paragraph (d);
■ e. Redesignating paragraph (e) as
paragraph (d); and
■ f. Revising the introductory text of the
newly redesignated paragraph (d).
The revisions read as follows:
252.209–7005 Reserve Officer Training
Corps and military recruiting on campus.
*
*
*
*
*
(b) Limitation. Except as provided in
paragraph (c) of this clause, the
Contractor shall not, during
performance of this contract, have any
policy or practice that prohibits or in
effect prevents—
*
*
*
*
*
(d) Notwithstanding any other clause
of this contract, if the Secretary of
Defense determines that the Contractor
misrepresented its policies and
practices at the time of contract award
or has violated the prohibition in
paragraph (b) of this clause—
*
*
*
*
*
■ 10. Amend section 252.216–7000 by—
■ a. Amending the introductory text by
removing ‘‘216.203–4–70(a)’’ and
adding in its place ‘‘216.203–4–
70(a)(1)’’;
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b. Amending the clause date by
removing ‘‘(JUL 1997)’’ and adding in its
place ‘‘(MAR 2012)’’; and
■ c. Revising paragraph (b) to read as
follows:
■
252.216–7000 Economic price
adjustment—basic steel, aluminum, brass,
bronze, or copper mill products.
*
*
*
*
*
(b) As represented by the Contractor
in its offer, the unit price stated for
llllllll (Identify the item) is
not in excess of the Contractor’s
established price in effect on the date
set for opening of bids (or the contract
date if this is a negotiated contract) for
like quantities of the same item. This
price is the net price after applying any
applicable standard trade discounts
offered by the Contractor from its
catalog, list, or schedule price.
*
*
*
*
*
■ 11. Amend section 252.216–7003 by—
■ a. Amending the introductory text by
removing ‘‘216.203–4–70(c)’’ and
adding in its place ‘‘216.203–4–
70(c)(1)’’;
■ b. Amending the clause date by
removing ‘‘(JUN 1997) and adding in its
place ‘‘(MAR 2012)’’; and
■ c. Revising paragraph (a) to read as
follows:
252.216–7003 Economic price adjustmentwage rates or material prices controlled by
a foreign government.
*
*
*
*
*
(a) As represented by the Contractor
in its offer, the prices set forth in this
contract—
(1) Are based on the wage rates or
material prices established and
controlled by the government of the
country specified by the Contractor in
its offer; and
(2) Do not include contingency
allowances to pay for possible increases
in wage rates or material prices.
*
*
*
*
*
■ 12. Add section 252.216–7007 to read
as follows:
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As prescribed in 216.203–4–70(a)(2),
use the following provision:
(a) Definitions. The terms ‘‘established
price’’ and ‘‘unit price,’’ as used in this
provision, have the meaning given in the
clause 252.216–7000, Economic Price
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(End of provision)
■ 13. Add section 252.216–7008 to read
as follows:
252.216–7008 Economic price
adjustment—wage rates or material prices
controlled by a foreign government—
representation.
As prescribed in 216.203–4–70(c)(2),
use the following provision:
Economic Price Adjustment—Wage
Rates or Material Prices Controlled by
a Foreign Government—Representation
(MAR 2012)
(a) By submission of its offer, the offeror
represents that the prices set forth in this
offer—
(1) Are based on the wage rate(s) or
material price(s) established and controlled
by the government of llllllll
(Offeror insert name of host country); and
(2) Do not include contingency allowances
to pay for possible increases in wage rates or
material prices.
(End of provision)
■ 14. Amend section 252.229–7003 by—
■ a. Amending the introductory text by
removing ‘‘229.402–70(c)’’ and adding
in its place ‘‘229.402–70(c)(1)’’;
■ b. Amending the clause date by
removing ‘‘(JAN 2002)’’ and adding in
its place ‘‘(MAR 2012)’’; and
■ c. Revising paragraph (a) to read as
follows:
252.229–7003
Tax Exemptions (Italy).
(a) As the Contractor represented in
its offer, the contract price, including
the prices in subcontracts awarded
under this contract, does not include
taxes from which the United States
Government is exempt.
*
*
*
*
*
16. Add section 252.229–7012 to read
as follows:
■
252.229–7012 Tax exemptions (Italy)—
representation.
As prescribed in 229.402–70(c)(2), use
the following provision:
TAX EXEMPTIONS (ITALY)—
REPRESENTATION (MAR 2012)
(a) Exemptions. The United States
Government is exempt from payment of—
(1) Imposta Valore Aggiunto (IVA) tax in
accordance with Article 72 of the IVA
implementing decree on all supplies and
services sold to United States Military
Commands in Italy; and
(2) The other taxes specified in paragraph
(c) of the clause DFARS 252.229–7003, Tax
Exemptions (Italy).
(b) Representation. By submission of its
offer, the offeror represents that the offered
price, including the prices of subcontracts to
be awarded under the contract, does not
include the taxes identified herein, or any
other taxes from which the United States
Government is exempt.
(End of provision)
17. Add section 252.229–7013 to read
as follows:
■
252.229–7013 Tax exemptions (Spain)—
representation.
As prescribed in 229.402–70(e)(2), use
the following clause:
TAX EXEMPTIONS (SPAIN)—
REPRESENTATION (MAR 2012)
*
*
*
*
(a) As the Contractor represented in
its offer, the contract price, including
the prices in subcontracts awarded
under this contract, does not include
taxes from which the United States
Government is exempt.
*
*
*
*
*
■ 15. Amend section 252.229–7005 by—
■ a. Amending the introductory text by
removing ‘‘229.402–70(e)’’ and adding
in its place ‘‘229.402–70(e)(1)’’;
■ b. Amending the clause date by
removing ‘‘(JUN 1997)’’ and adding in
its place ‘‘(MAR 2012)’’; and
■ c. Revising paragraph (a) to read as
follows:
(a) Exemptions. In accordance with tax
relief agreements between the United States
Government and the Spanish Government,
and because the resultant contract arises from
the activities of the United States Forces in
Spain, the contract will be exempt from the
excise, luxury, and transaction taxes listed in
paragraph (b) of the clause DFARS 252.229–
7005, Tax Exemptions (Spain).
(b) Representation. By submission of its
offer, the offeror represents that the offered
price, including the prices of subcontracts to
be awarded under the contract, does not
include the taxes identified herein, or any
other taxes from which the United States
Government is exempt.
252.229–7005
252.216–7007 Economic price
adjustment—basic steel, aluminum, brass,
bronze, or copper mill productsrepresentation.
ECONOMIC PRICE ADJUSTMENT—
BASIC STEEL, ALUMINUM, BRASS,
BRONZE, OR COPPER MILL
PRODUCTS—REPRESENTATION
(MAR 2012)
Adjustment—Basic Steel, Aluminum, Brass,
Bronze, or Copper Mill Products.
(b) By submission of its offer, the offeror
represents that the unit price stated in this
offer for llllllll (Identify the item)
is not in excess of the offeror’s established
price in effect on the date set for opening of
bids (or the contract date if this is to be a
negotiated contract) for like quantities of the
same item. This price is the net price after
applying any applicable standard trade
discounts offered by the offeror from its
catalog, list, or schedule price.
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BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Rules and Regulations]
[Pages 19128-19131]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7559]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 209, 216, 229, and 252
RIN 0750-AH38
Defense Federal Acquisition Regulation Supplement: Separation of
Combined Provisions and Clauses (DFARS Case 2011-D048)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to separate provisions and
clauses that are currently combined in order to be in compliance with
DFARS drafting conventions.
DATES: Effective Date: March 30, 2012.
FOR FURTHER INFORMATION CONTACT: Amy G. Williams, telephone 571-372-
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 76 FR
71922 on November 21, 2011, to separate provisions and clauses that are
currently combined in order to comply with DFARS drafting conventions.
A provision is included only in the solicitation, and generally
includes representations and certifications, to which the offeror
responds in its offer. A contract clause is included in both the
solicitation and the resultant contract, and provides the terms that
apply throughout contract performance. It is inconsistent with DFARS
drafting conventions to combine a provision and a clause in a single
clause. This rule removes the representations from the following five
DFARS clauses and creates five new provisions to be used in
solicitations that include the associated clauses:
[[Page 19129]]
------------------------------------------------------------------------
From DFARS clause To new provision
------------------------------------------------------------------------
252.209-7005, Reserve Officer Training 252.209-7003, Reserve Officer
Corps and Military Recruiting on Training Corps and Military
Campus. Recruiting on Campus--
Representation.
252.216-7000, Economic Price 252.216-7007, Economic Price
Adjustment--Basic Steel, Aluminum, Adjustment--Basic Steel,
Brass, Bronze, or Copper Mill Products. Aluminum, Brass, Bronze, or
Copper Mill Products--
Representation.
252.216-7003, Economic Price 252.216-7008, Economic Price
Adjustment--Wage Rates or Material Adjustment--Wage Rates or
Prices Controlled by a Foreign Material Prices Controlled by
Government. a Foreign Government--
Representation.
252.229-7003, Tax Exemptions (Italy)... 252.229-7012, Tax Exemptions
(Italy)--Representation.
252.229-7005, Tax Exemptions (Spain)... 252.229-7013, Tax Exemptions
(Spain)--Representation.
------------------------------------------------------------------------
Conforming changes are also required to DFARS 252.204-7007,
Alternate A, Annual Representations and Certifications, and the
associated prescriptions at DFARS 204.1202(2) to list the new
provisions in lieu of the current DFARS clauses.
II. Discussion and Analysis of the Public Comments
There were no public responses submitted that pertained to the
proposed rule. Minor changes made to the proposed rule include adding
new clause numbers and dates, edits to section titles as required to
reflect the addition of new provisions, and minor editorial and
grammatical changes to paragraph (a) of 252.229-7005, Tax Exemptions
(Spain).
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 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). E.O.
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 E.O. 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 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 it does not add any new requirements--it only reformats
existing requirements of five clauses into separate provisions and
clauses.
V. Paperwork Reduction Act
The 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 204, 209, 216, 229, and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 204, 209, 216, 229, and 252 are amended as
follows:
0
1. The authority citation for 48 CFR parts 204, 209, 216, and 229 is
revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 204--ADMINISTRATIVE MATTERS
0
2. Amend section 204.1202 by revising paragraphs (2)(ii), (iii), (iv),
(xi), and (xii) to read as follows:
204.1202 Solicitation provision.
* * * * *
(2) * * *
(ii) 252.209-7002, Disclosure of Ownership or Control by a Foreign
Government.
(iii) 252.209-7003, Reserve Officer Training Corps and Military
Recruiting on Campus--Representation.
(iv) 252.216-7008, Economic Price Adjustment--Wage Rates or
Material Prices Controlled by a Foreign Government--Representation.
* * * * *
(xi) 252.229-7012, Tax Exemptions (Italy)--Representation.
(xii) 252.229-7013, Tax Exemptions (Spain)--Representation.
PART 209--CONTRACTOR QUALIFICATIONS
0
3. Revise section 209.470-4 to read as follows:
209.470-4 Solicitation provision and contract clause.
(a) Use the provision at 252.209-7003, Reserve Officer Training
Corps and Military Recruiting on Campus--Representation, in all
solicitations with institutions of higher education.
(b) Use the clause at 252.209-7005, Reserve Officer Training Corps
and Military Recruiting on Campus, in all solicitations and contracts
with institutions of higher education.
PART 216--TYPES OF CONTRACTS
0
4. Amend section 216.203-4-70 by--
0
a. Revising the section heading; and
0
b. Revising paragraphs (a) and (c) to read as follows:
216.203-4-70 Additional provisions and clauses.
(a) Price adjustment for basic steel, aluminum, brass, bronze, or
copper mill products. (1)(i) The price adjustment clause at 252.216-
7000, Economic Price Adjustment--Basic Steel, Aluminum, Brass, Bronze,
or Copper Mill Products, may be used in fixed-price supply
solicitations and contracts for basic steel, aluminum, brass, bronze,
or copper mill products, such as sheets, plates, and bars, when an
established catalog or market price exists for the particular product
being acquired.
(ii) The 10 percent figure in paragraph (d)(1) of the clause shall
not be exceeded unless approval is obtained at a level above the
contracting officer.
(2) Use the price adjustment provision at 252.216-7007, Economic
Price Adjustment--Basic Steel, Aluminum, Brass, Bronze, or Copper Mill
Products--Representation, in solicitations that include the clause at
252.216-7000, Economic Price Adjustment--Basic Steel, Aluminum, Brass,
Bronze, or Copper Mill Products.
* * * * *
(c) Price adjustment for wage rates or material prices controlled
by a foreign government. (1)(i) The price adjustment clause at 252.216-
7003, Economic Price Adjustment--Wage Rates or Material Prices
Controlled by a Foreign Government, may be used in fixed-price supply
and service solicitations and contracts when--
(A) The contract is to be performed wholly or in part in a foreign
country; and
(B) A foreign government controls wage rates or material prices and
may, during contract performance, impose a
[[Page 19130]]
mandatory change in wages or prices of material.
(ii) Verify the base wage rates and material prices prior to
contract award and prior to making any adjustment in the contract
price.
(2) Use the provision at 252.216-7008, Economic Price Adjustment--
Wage Rates or Material Prices Controlled by a Foreign Government--
Representation, in solicitations that include the clause DFARS 252.216-
7003, Economic Price Adjustment--Wage Rates or Material Prices
Controlled by a Foreign Government.
PART 229--TAXES
0
5. Amend section 229.402-70 by--
0
a. Revising the section heading; and
0
b. Revising paragraphs (c) and (e) to read as follows:
229.402-70 Additional provisions and clauses.
* * * * *
(c)(1) Use the clause at 252.229-7003, Tax Exemptions (Italy), in
solicitations and contracts when contract performance will be in Italy.
(2) Use the provision at 252.229-7012, Tax Exemptions (Italy)--
Representation, in solicitations that contain the clause at 252.229-
7003, Tax Exemptions (Italy).
* * * * *
(e)(1) Use the clause at 252.229-7005, Tax Exemptions (Spain), in
solicitations and contracts when contract performance will be in Spain.
(2) Use the provision at 252.229-7013, Tax Exemptions (Spain)--
Representation, in solicitations that contain the clause at 252.229-
7005, Tax Exemptions (Spain).
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. The authority citation for 48 CFR part 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
7. Amend section 252.204-7007 by--
0
a. Amending the clause date by removing ``(NOV 2011)'' and adding in
its place ``(MAR 2012)''; and
0
b. Revising paragraph (d)(1) to read as follows:
252.204-7007 Alternate A, Annual Representations and Certifications.
* * * * *
(d)(1) The following representations or certifications in ORCA are
applicable to this solicitation as indicated:
(i) 252.209-7001, Disclosure of Ownership or Control by the
Government of a Terrorist Country. Applies to all solicitations
expected to result in contracts of $150,000 or more.
(ii) 252.209-7003, Reserve Officer Training Corps and Military
Recruiting on Campus--Representation. Applies to all solicitations with
institutions of higher education.
(iii) 252.216-7008, Economic Price Adjustment--Wage Rates or
Material Prices Controlled by a Foreign Government. Applies to
solicitations for fixed-price supply and service contracts when the
contract is to be performed wholly or in part in a foreign country, and
a foreign government controls wage rates or material prices and may
during contract performance impose a mandatory change in wages or
prices of materials.
(iv) 252.225-7042, Authorization to Perform. Applies to all
solicitations when performance will be wholly or in part in a foreign
country.
(v) 252.229-7012, Tax Exemptions (Italy)--Representation. Applies
to solicitations when contract performance will be in Italy.
(vi) 252.229-7013, Tax Exemptions (Spain)--Representation. Applies
to solicitations when contract performance will be in Spain.
* * * * *
0
8. Add section 252.209-7003 to read as follows:
252.209-7003 Reserve Officer Training Corps and Military Recruiting
on Campus-Representation.
As prescribed in 209.470-4(a), use the following provision:
RESERVE OFFICER TRAINING CORPS AND MILITARY RECRUITING ON CAMPUS--
REPRESENTATION (MAR 2012)
(a) Definition. ``Institution of higher education,'' as used in
this provision, is defined in the clause at 252.209-7005, Reserve
officer Training Corps and Military Recruiting on Campus.
(b) Limitation on contract award. Except as provided in
paragraph (c) of this provision, an institution of higher education
is ineligible for contract award if the Secretary of Defense
determines that the institution has a current policy or practice
(regardless of when implemented) that prohibits or in effect
prevents--
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior Reserve Officer
Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other
applicable Federal laws) at that institution;
(2) A student at that institution from enrolling in a unit of
the Senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of
Transportation from gaining entry to campuses, or access to students
(who are 17 years of age or older) on campuses, for purposes of
military recruiting; or
(4) Military recruiters from accessing, for purposes of military
recruiting, the following information pertaining to students (who
are 17 years of age or older) enrolled at that institution:
(i) Name.
(ii) Address.
(iii) Telephone number.
(iv) Date and place of birth.
(v) Educational level.
(vi) Academic major.
(vii) Degrees received.
(viii) Most recent educational institution enrollment.
(c) Exception. The limitation in paragraph (b) of this provision
does not apply to an institution of higher education if the
Secretary of Defense determines that the institution has a long-
standing policy of pacifism based on historical religious
affiliation.
(d) Representation. By submission of its offer, the offeror
represents that the institution does not have any policy or practice
described in paragraph (b) of this clause, unless the Secretary of
Defense has determined that the institution has a long-standing
policy of pacifism based on historical religious affiliation.
(End of provision)
0
9. Amend section 252.209-7005 by--
0
a. Amending the introductory text by removing ``209.470-4'' and adding
in its place ``209.470-4(b)'';
0
b. Amending the clause date by removing ``(JAN 2000)'' and adding in
its place ``(MAR 2012)'';
0
c. Revising introductory text of paragraph (b);
0
d. Removing paragraph (d);
0
e. Redesignating paragraph (e) as paragraph (d); and
0
f. Revising the introductory text of the newly redesignated paragraph
(d).
The revisions read as follows:
252.209-7005 Reserve Officer Training Corps and military recruiting
on campus.
* * * * *
(b) Limitation. Except as provided in paragraph (c) of this clause,
the Contractor shall not, during performance of this contract, have any
policy or practice that prohibits or in effect prevents--
* * * * *
(d) Notwithstanding any other clause of this contract, if the
Secretary of Defense determines that the Contractor misrepresented its
policies and practices at the time of contract award or has violated
the prohibition in paragraph (b) of this clause--
* * * * *
0
10. Amend section 252.216-7000 by--
0
a. Amending the introductory text by removing ``216.203-4-70(a)'' and
adding in its place ``216.203-4-70(a)(1)'';
[[Page 19131]]
0
b. Amending the clause date by removing ``(JUL 1997)'' and adding in
its place ``(MAR 2012)''; and
0
c. Revising paragraph (b) to read as follows:
252.216-7000 Economic price adjustment--basic steel, aluminum, brass,
bronze, or copper mill products.
* * * * *
(b) As represented by the Contractor in its offer, the unit price
stated for ---------------- (Identify the item) is not in excess of the
Contractor's established price in effect on the date set for opening of
bids (or the contract date if this is a negotiated contract) for like
quantities of the same item. This price is the net price after applying
any applicable standard trade discounts offered by the Contractor from
its catalog, list, or schedule price.
* * * * *
0
11. Amend section 252.216-7003 by--
0
a. Amending the introductory text by removing ``216.203-4-70(c)'' and
adding in its place ``216.203-4-70(c)(1)'';
0
b. Amending the clause date by removing ``(JUN 1997) and adding in its
place ``(MAR 2012)''; and
0
c. Revising paragraph (a) to read as follows:
252.216-7003 Economic price adjustment-wage rates or material prices
controlled by a foreign government.
* * * * *
(a) As represented by the Contractor in its offer, the prices set
forth in this contract--
(1) Are based on the wage rates or material prices established and
controlled by the government of the country specified by the Contractor
in its offer; and
(2) Do not include contingency allowances to pay for possible
increases in wage rates or material prices.
* * * * *
0
12. Add section 252.216-7007 to read as follows:
252.216-7007 Economic price adjustment--basic steel, aluminum, brass,
bronze, or copper mill products-representation.
As prescribed in 216.203-4-70(a)(2), use the following provision:
ECONOMIC PRICE ADJUSTMENT--BASIC STEEL, ALUMINUM, BRASS, BRONZE, OR
COPPER MILL PRODUCTS--REPRESENTATION (MAR 2012)
(a) Definitions. The terms ``established price'' and ``unit
price,'' as used in this provision, have the meaning given in the
clause 252.216-7000, Economic Price Adjustment--Basic Steel,
Aluminum, Brass, Bronze, or Copper Mill Products.
(b) By submission of its offer, the offeror represents that the
unit price stated in this offer for ---------------- (Identify the
item) is not in excess of the offeror's established price in effect
on the date set for opening of bids (or the contract date if this is
to be a negotiated contract) for like quantities of the same item.
This price is the net price after applying any applicable standard
trade discounts offered by the offeror from its catalog, list, or
schedule price.
(End of provision)
0
13. Add section 252.216-7008 to read as follows:
252.216-7008 Economic price adjustment--wage rates or material prices
controlled by a foreign government--representation.
As prescribed in 216.203-4-70(c)(2), use the following provision:
Economic Price Adjustment--Wage Rates or Material Prices Controlled by
a Foreign Government--Representation (MAR 2012)
(a) By submission of its offer, the offeror represents that the
prices set forth in this offer--
(1) Are based on the wage rate(s) or material price(s)
established and controlled by the government of ----------------
(Offeror insert name of host country); and
(2) Do not include contingency allowances to pay for possible
increases in wage rates or material prices.
(End of provision)
0
14. Amend section 252.229-7003 by--
0
a. Amending the introductory text by removing ``229.402-70(c)'' and
adding in its place ``229.402-70(c)(1)'';
0
b. Amending the clause date by removing ``(JAN 2002)'' and adding in
its place ``(MAR 2012)''; and
0
c. Revising paragraph (a) to read as follows:
252.229-7003 Tax Exemptions (Italy).
* * * * *
(a) As the Contractor represented in its offer, the contract price,
including the prices in subcontracts awarded under this contract, does
not include taxes from which the United States Government is exempt.
* * * * *
0
15. Amend section 252.229-7005 by--
0
a. Amending the introductory text by removing ``229.402-70(e)'' and
adding in its place ``229.402-70(e)(1)'';
0
b. Amending the clause date by removing ``(JUN 1997)'' and adding in
its place ``(MAR 2012)''; and
0
c. Revising paragraph (a) to read as follows:
252.229-7005 Tax exemptions (Spain).
* * * * *
(a) As the Contractor represented in its offer, the contract price,
including the prices in subcontracts awarded under this contract, does
not include taxes from which the United States Government is exempt.
* * * * *
0
16. Add section 252.229-7012 to read as follows:
252.229-7012 Tax exemptions (Italy)--representation.
As prescribed in 229.402-70(c)(2), use the following provision:
TAX EXEMPTIONS (ITALY)--REPRESENTATION (MAR 2012)
(a) Exemptions. The United States Government is exempt from
payment of--
(1) Imposta Valore Aggiunto (IVA) tax in accordance with Article
72 of the IVA implementing decree on all supplies and services sold
to United States Military Commands in Italy; and
(2) The other taxes specified in paragraph (c) of the clause
DFARS 252.229-7003, Tax Exemptions (Italy).
(b) Representation. By submission of its offer, the offeror
represents that the offered price, including the prices of
subcontracts to be awarded under the contract, does not include the
taxes identified herein, or any other taxes from which the United
States Government is exempt.
(End of provision)
0
17. Add section 252.229-7013 to read as follows:
252.229-7013 Tax exemptions (Spain)--representation.
As prescribed in 229.402-70(e)(2), use the following clause:
TAX EXEMPTIONS (SPAIN)--REPRESENTATION (MAR 2012)
(a) Exemptions. In accordance with tax relief agreements between
the United States Government and the Spanish Government, and because
the resultant contract arises from the activities of the United
States Forces in Spain, the contract will be exempt from the excise,
luxury, and transaction taxes listed in paragraph (b) of the clause
DFARS 252.229-7005, Tax Exemptions (Spain).
(b) Representation. By submission of its offer, the offeror
represents that the offered price, including the prices of
subcontracts to be awarded under the contract, does not include the
taxes identified herein, or any other taxes from which the United
States Government is exempt.
(End of provision)
[FR Doc. 2012-7559 Filed 3-29-12; 8:45 am]
BILLING CODE 5001-06-P
