Defense Federal Acquisition Regulation Supplement: Solicitation Provisions and Contract Clauses for Acquisitions of Commercial Items, 20598-20609 [2012-8053]
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20598
Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules
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I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272), directs
the EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus bodies. The
NTTAA directs the EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards. This proposed
action includes environmental
monitoring and measurement as
described in EPA’s proposed SMMP.
The EPA will not require the use of
specific, prescribed analytic methods for
monitoring and managing the
designated Sites. The Agency plans to
allow the use of any method, whether it
constitutes a voluntary consensus
standard or not, that meets the
monitoring and measurement criteria
discussed in the proposed SMMP. The
EPA welcomes comments on this aspect
of the proposed rulemaking and,
specifically, invites the public to
identify potentially-applicable
voluntary consensus standards and to
explain why such standards should be
used in this proposed action.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and Low
Income Populations
Executive Order 12898 (59 FR 7629)
establishes federal executive policy on
environmental justice. Its main
provision directs federal agencies, to the
greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States. The
EPA determined that this proposed rule
will not have disproportionately high
and adverse human health or
environmental effects on minority or
low-income populations because it does
not affect the level of protection
provided to human health or the
environment. The EPA has assessed the
overall protectiveness of designating the
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disposal Sites against the criteria
established pursuant to the MPRSA to
ensure that any adverse impact to the
environment will be mitigated to the
greatest extent practicable. We welcome
comments on this proposed action
related to this Executive Order.
List of Subjects in 40 CFR Part 228
Environmental protection, Water
pollution control.
Authority: This action is issued under the
authority of Section 102 of the Marine
Protection, Research, and Sanctuaries Act, as
amended, 33 U.S.C. 1401, 1411, 1412.
Dated: March 20, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.
For the reasons set out in the
preamble, The EPA proposes to amend
chapter I, title 40 of the Code of Federal
Regulations as follows:
PART 228—[AMENDED]
1. The authority citation for Part 228
continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
(A) Location: 44°36′04.50″ N,
124°07′52.66″ W, 44°35′59.39″ N,
124°06′57.84″ W, 44°35′00.85″ N,
124°08′04.27″ W, 44°34′55.75″ N,
124°07′09.47″ W.
(B) Size: Approximately 1.07 nautical
miles long and 0.66 nautical miles wide
(0.71 square nautical miles); 597 acres
(242 hectares).
(C) Depth: Ranges from approximately
112 to 152 feet (34 to 46 meters).
(D) Primary Use: Dredged material.
(E) Period of Use: Continuing use.
(F) Restrictions: (1) Disposal shall be
limited to dredged material determined
to be suitable for ocean disposal
according to 40 CFR 227.13, from the
Yaquina Bay and River navigation
channel and adjacent areas;
(2) Disposal shall be managed by the
restrictions and requirements contained
in the currently-approved Site
Management and Monitoring Plan
(SMMP);
(3) Monitoring, as specified in the
SMMP, is required.
[FR Doc. 2012–8193 Filed 4–4–12; 8:45 am]
BILLING CODE 6560–50–P
2. Section 228.15 is amended by
adding paragraph (n)(15) to read as
follows:
DEPARTMENT OF DEFENSE
§ 228.15 Dumping sites designated on a
final basis.
Defense Acquisition Regulations
System
*
*
*
*
*
(n) * * *
(15) Yaquina Bay, OR—North and
South Ocean Dredged Material Disposal
Sites.
(i) North Site.
(A) Location: 44°38′17.98″ N,
124°07′25.95″ W, 44°38′12.86″ N,
124°06′31.10″ W, 44°37′14.33″ N,
124°07′37.57″ W, 44°37′09.22″ N,
124°06′42.73″ W.
(B) Size: Approximately 1.07 nautical
miles long and 0.66 nautical miles wide
(0.71 square nautical miles); 597 acres
(242 hectares).
(C) Depth: Ranges from
approximately112 to 152 feet (34 to 46
meters).
(D) Primary Use: Dredged material.
(E) Period of Use: Continuing use.
(F) Restrictions: (1) Disposal shall be
limited to dredged material determined
to be suitable for ocean disposal
according to 40 CFR 227.13 from the
Yaquina Bay and River navigation
channel and adjacent areas;
(2) Disposal shall be managed by the
restrictions and requirements contained
in the currently-approved Site
Management and Monitoring Plan
(SMMP);
(3) Monitoring, as specified in the
SMMP, is required.
(ii) South Site
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48 CFR Parts 203, 204, 205, 209, 211,
212, 219, 225, 226, 227, 232, 237, 243,
244, 246, 247, and 252
[DFARS Case 2011–D056]
RIN 0750–AH63
Defense Federal Acquisition
Regulation Supplement: Solicitation
Provisions and Contract Clauses for
Acquisitions of Commercial Items
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
simplify prescriptions for provisions
and clauses that are applicable to the
acquisition of commercial items and to
specify flowdown of clauses to
commercial subcontracts.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before June
4, 2012, to be considered in the
formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2011–D056,
using any of the following methods:
SUMMARY:
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Æ Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2011–D056’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2011–
D056.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2011–
D056’’ on your attached document.
Æ Email: dfars@osd.mil. Include
DFARS Case 2011–D056 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Dr. Laura
Welsh, OUSD (AT&L) DPAP/DARS,
Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Dr.
Laura Welsh, telephone 571–372–6091.
SUPPLEMENTARY INFORMATION:
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I. Background
DoD is proposing to revise the DFARS
to support the use of automated contract
writing systems. The clause at DFARS
252.212–7001, Contract Terms and
Conditions Required to Implement
Statutes or Executive Orders Applicable
to Defense Acquisitions of Commercial
Items, requires the contracting officer to
‘‘check a box’’ to identify the clauses
that are applicable to each commercial
item acquisition. This requirement is
not compatible with most automated
contract writing systems. Section 8002
of the Federal Acquisition Streamlining
Act of 1994 (Pub. L. 103–355) requires
that the regulations shall contain a list
of contract clauses to be included in
contracts for the acquisition of
commercial end items. Each time a
clause or clause alternate is added, DoD
must consider whether the clause or
clause alternate will be applicable to
commercial items. The law does not
require that this list be in the form of a
clause, requiring clause dates for each
applicable clause that must be revised
every time a clause on the list is
modified.
Furthermore, clause flowdown to
commercial subcontracts is controlled
by paragraph (c) of the clause 252.212–
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7001 for commercial contracts under
FAR part 12 and clause 252.244–7000,
Subcontracts for Commercial Items and
Commercial Components (DoD
Contracts). These lists of clauses that
require flowdown to commercial
subcontracts likewise require update
every time a clause on the list is
modified.
II. Discussion and Analysis
DoD proposes the following changes
to facilitate the use of automated
contract writing systems and reduce the
need for constant update of clause dates
on multiple lists.
• Revise DFARS 212.301(f) to—
—Provide a single list of all fifty-eight
provisions and clauses that currently
apply to DoD solicitations and
contracts for the acquisition of
commercial items. Where any
provision or clause is included to
implement statutes or executive
orders that are applicable to defense
acquisitions of commercial items, the
particular statute or Executive order is
identified following the location of
the prescription for each provision or
clause. All provisions and clauses
currently listed in DFARS 212.301(f)
that are applicable to DoD
solicitations and contracts for the
acquisition of commercial items are
retained in the revised list.
—Add DFARS provision 252.203–7005,
Representation Relating to
Compensation of Former DoD
Officials. This provision’s application
to the acquisition of commercial items
was inadvertently omitted from case
2010–D020 when the final rule was
published on November 18, 2011 (76
FR 71826).
—Add the two provisions currently
contained in DFARS provision
252.212–7000, Offeror
Representations and Certifications—
Commericial Items.
—Add one FAR clause and thirty-one
DFARS clauses (inclusive of
alternates) currently contained in
DFARS clause 252.212–7001, Contract
Terms and Conditions Required to
Implement Statutes or Executive
Orders Applicable to Defense
Acquisitions of Commercial Items.
—Add two DFARS provisions and two
DFARS clauses in support of
operations in Iraq or Afghanistan:
provision 252.225–7022, Trade
Agreements Certificate—Inclusion of
Iraqi End Products; provision
252.225–7023, Preference for Products
or Services from Iraq or Afghanistan;
clause 252.225–7024, Requirement for
Products or Services from Iraq or
Afghanistan; and clause 252.225–
7026, Acquisition Restricted to
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Products or Services from Iraq or
Afghanistan. These provisions’ and
clauses’ application to the acquisition
of commercial items in support of
operations in Iraq or Afghanistan was
inadvertently omitted from case
2008–D002 when the final rule was
published on April 8, 2010 (75 FR
18035).
—Add DFARS provision 252.225–7037,
Evaluation of Offers for Air Circuit
Breakers. This provision’s application
to the acquisition of commercial items
was inadvertently omitted from case
2002–D009 when the final rule was
published in the Federal Register on
March 31, 2003 (68 FR 15616), with
an effective date of April 30, 2003.
This provision is the companion to
DFARS clause 252.225–7038,
Restriction on Acquisition of Air
Circuit Breakers, which is currently
listed at paragraph (b)(17) of DFARS
clause 252.212–7001.
—Revise clause 252.244–7000,
Subcontracts for Commercial Items, to
address the requirements regarding
flow down of clauses to subcontracts
of commercial items currently
contained in paragraph (c) of clause
252.212–7001.
—Add DFARS clause 252.247–7025,
Reflagging or Repair Work. This
clause’s application to the acquisition
of commercial items was
inadvertently omitted from case 95–
D712 for the commercial item
implementation of the Federal
Acquisition Streamlining Act of 1994
(FASA) when the final rule was
published in the Federal Register on
November 1, 2001 (66 FR 55151). All
other clauses contained in DFARS
247.574 for ocean transportation by
U.S.-flag vessels are listed as
applicable to the defense acquisition
of commercial items. Time charter
acquisitions of vessels are commercial
by their very nature. Further, 10
U.S.C. 2631 is not listed in DFARS
212.503(a) as a law not applicable to
commercial contracts.
—Add provision and clause alternates
that are applicable to commercial
items that were previously
inadvertently omitted from either
DFARS 212.301(f) or DFARS clause
252.212–7001. Alternates were added
as applicable to: Clause 252.219–
7003, Small Business Subcontracting
Plan; provision 252.225–7000, Buy
American Act–Balance of Payments
Program Certificate; provision
252.225–7020, Trade Agreements
Certificate; provision 252.225–7035,
Buy American Act—Free Trade
Agreements—Balance of Payments
Program Certificate; clause 252.227–
7013, Rights in Technical Data—
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Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Proposed Rules
Noncommercial Items; and clause
252.227–7015, Technical Data—
Commercial Items.
—Delete DFARS provision 252.212–
7000, Offeror Representations and
Certifications—Commercial Items,
and DFARS clause 252.212–7001,
Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders Applicable to
Defense Acquisitions of Commercial
Items. These deletions support the use
of automated contract writing
systems. Rather than requiring the
contracting officers to ‘‘check the
applicable clauses,’’ the automated
contract writing systems can be used
to automatically select the applicable
clauses, saving the DoD time and
scarce resources.
• Revise the prescriptions for each of
the fifty-eight provisions and clauses,
including alternates, in the revised list
at DFARS 212.301(f) to indicate that
they are specifically used in
solicitations or contracts using FAR part
12 procedures for the acquisition of
commercial items. The phrase
‘‘including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items’’ was
used in lieu of a simpler phrase such as
‘‘including commercial item
solicitations and contracts’’ as FAR
12.102(f) and (g) allow for the use of
part 12 procedures for items that do not
meet the definition of a commercial
item defined at FAR 2.101.
• Make technical corrections to—
—The prescription at 232.908.
—Provide the location of prescriptions
for provisions and clauses for the
following: 252.203–7000, 252.211–
7003, and 252.227–7037.
—Provide the locations of definitions
missing in 247.571 and to provide the
statutory citations missing in 247.572.
• Revise DFARS clause 252.244–
7000, Subcontracts for Commercial
Items and Commercial Components
(DoD Contracts), to indicate that the
contractor is not required to flow down
the terms of any DFARS clause in
subcontracts for commercial items
unless so specified in the particular
clause.
• Revise the last paragraph of the
following clauses to state that the terms
should flow down to subcontracts for
commercial items: 252.211–7003;
252.225–7009; 252.225–7039; 252.227–
7013; 252.227–7015; 252.227–7037;
252.236–7013; 252.237–7010; 252.237–
7019; 252.246–7003; 252.247–7003; and
252.247–7023. The list of clauses
requiring flow down of clause terms to
subcontracts for commercial items was
obtained from paragraph (c) of DFARS
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clause 252.212–7001 and the list
contained in the current DFARS clause
252.244–7000, with the addition of
clause 252.211–7003, which was
previously inadvertently omitted from
both lists in case 2003–D081 when the
final rule was published in the Federal
Register on April 22, 2005 (70 FR
20831). However, clause 252.247–7024
did not require revision as it already
contained language specifically
requiring flow down to subcontracts for
commercial items.
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 does not expect this proposed
rule to have a significant economic
impact on a substantial number of small
entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., because the rule aims to only
change the appearance of how
commercial provisions and clauses are
presented within commercial
acquisitions and there are no
substantive changes. However, an initial
regulatory flexibility analysis has been
performed and is summarized as
follows.
The purpose of this case is to support
the use of automated contract writing
systems. The clause at DFARS 252.212–
7001 requires the contracting officer to
‘‘check a box’’ to identify the clauses
that are applicable to each commercial
item acquisition. Rather than requiring
the contracting officers to ‘‘check the
applicable clauses,’’ this proposed rule
will allow automated contract writing
systems to automatically select the
applicable clauses, saving DoD time and
scarce resources.
Potential offerors, including small
businesses, may be affected by this rule
only to the extent of seeing an
unfamiliar format for clauses in
commercial item acquisitions issued by
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any DoD contracting activities that do
not already currently deviate from the
current DFARS requirement to ‘‘check a
box.’’ There were 273,042 new
contracts, agreements, and purchase
orders awarded in Fiscal Year 2011
using FAR part 12 procedures for the
acquisition of commercial items, and
71,950 of these actions (26.35%) were
awarded to small businesses. It is
unknown how many of these actions
were awarded using a deviation from
DFARS clause 252.212–7001. Nothing
substantive will change in commercial
acquisitions for potential offerors, and
only the appearance of how applicable
clauses are presented will be changed.
This rule may result in potential
offerors, including small businesses,
expending more time to become familiar
with and to understand the new clause
format issued by any DoD contracting
activities not presently operating under
the existing deviation. The burden
caused by this rule is expected to be
minimal and will not be any greater on
small businesses than it is on large
businesses.
This rule does not add any new
information collection requirements.
The information collection burden
required by DFARS provisions 252.225–
7022, Trade Agreements Certificate—
Inclusion of Iraqi End Products, and
252.225–7023, Preference for Products
or Services from Iraq or Afghanistan, is
already covered and approved under
OMB Control Number 0704–0229
entitled Foreign Acquisitions. These
provisions are variants of the other
existing foreign acquisition reporting
burdens already used and covered for
commercial acquisitions (excluding
commercial information technology).
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
No alternatives were identified that
will accomplish the objectives of the
rule.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2011–D056), in
correspondence.
V. Paperwork Reduction Act
This rule does not contain any new
information collection requirements that
require the approval of the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act (44 U.S.C
chapter 35). The commercial clauses
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currently approved for use in
commercial contracts, which may
impose any information collection
burden on contractors or any
subcontractors, are already covered by
an existing approved OMB clearance.
The burdens for all existing commercial
clauses are not changed in any way by
this proposed rule. Two DFARS
provisions, with an associated
information collection burden, are
newly identified by this rule as being
applicable to acquisitions of commercial
items: 252.225–7022, Trade Agreements
Certificate—Inclusion of Iraqi End
Products; and 252.225–7023, Preference
for Products or Services from Iraq of
Afghanistan. The information collection
burdens associated with these two
DFARS provisions are already fully
covered and cleared under OMB Control
Number 0704–0229 entitled Foreign
Acquisitions. These two provisions are
variants of the other existing foreign
acquisition provisions with reporting
burdens already in use and covered for
commercial acquisitions (excluding
commercial information technology).
List of Subjects in 48 CFR Parts 203,
204, 205, 209, 211, 212, 219, 225, 226,
227, 232, 237, 243, 244, 246, 247, and
252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations
System.
in all solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, including
solicitations for task and delivery
orders.
3. Section 203.1004(a) is revised to
read as follows:
203.1004
Contract clauses.
(a) Use the clause at 252.203–7003,
Agency Office of the Inspector General,
in solicitations and contracts that
include the FAR clause 52.203–13,
Contractor Code of Business Ethics and
Conduct, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items.
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PART 204—ADMINISTRATIVE
MATTERS
4. Section 204.7109(b) is revised to
read as follows:
204.7109 Solicitation provision and
contract clause.
*
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*
*
(b) Use the provision at 252.204–7011,
Alternative Line Item Structure, in
solicitations using FAR part 12
procedures for the acquisition of
commercial items or for initial
provisioning spares.
PART 205—PUBLICIZING CONTRACT
ACTIONS
Therefore, 48 CFR parts 203, 204, 205,
209, 211, 212, 219, 225, 226, 227, 232,
237, 243, 244, 246, 247, and 252 are
proposed to be amended as follows:
1. The authority citation for 48 CFR
parts 203, 204, 205, 209, 211, 212, 219,
225, 226, 227, 232, 237, 243, 244, 246,
247, and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 203—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
5. Section 205.470 is revised to read
as follows:
205.470
Contract clause.
Use the clause at 252.205–7000,
Provision of Information to Cooperative
Agreement Holders, in solicitations and
contracts expected to exceed
$1,000,000, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items.
This clause implements 10 U.S.C. 2416.
PART 209—CONTRACTOR
QUALIFICATIONS
6. Section 209.104–70(a) is revised to
read as follows:
203.171–4 Solicitation provision and
contract clause.
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2. Section 203.171–4 is revised to read
as follows:
209.104–70
(a) Use the clause at 252.203–7000,
Requirements Relating to Compensation
of Former DoD Officials, in all
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items.
(b) Use the provision at 252.203–7005,
Representation Relating to
Compensation of Former DoD Officials,
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Solicitation provisions.
(a) Use the provision at 252.209–7001,
Disclosure of Ownership or Control by
the Government of a Terrorist Country,
in all solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, expected to result in
contracts of $150,000 or more. Any
disclosure that the government of a
terrorist country has a significant
interest in an offeror or a subsidiary of
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an offeror shall be forwarded through
agency channels to the address at
209.104–1(g)(i)(C).
*
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PART 211—DESCRIBING AGENCY
NEEDS
7. Section 211.274–6(a)(1) is revised
to read as follows:
211.274–6
Contract clauses.
(a)(1) Use the clause at 252.211–7003,
Item Identification and Valuation, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, that—
*
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*
*
8. Section 211.275–3 is revised to read
as follows:
211.275–3
Contract clause.
Use the clause at 252.211–7006,
Passive Radio Frequency Identification,
in solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, that will require
shipment of items meeting the criteria at
211.275–2, and complete paragraph
(b)(1)(ii) of the clause as appropriate.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
9. Section 212.301 is revised to read
as follows:
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
(f) The following additional
provisions and clauses apply to DoD
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items. If the offeror has
completed any of the following
provisions listed in this paragraph
electronically as part of its annual
representations and certifications at
https://www.acquisition.gov, the
contracting officer shall consider this
information instead of requiring the
offeror to complete these provisions for
a particular solicitation.
(i) Use the FAR clause at 52.203–3,
Gratuities, as prescribed in FAR 3.202,
to comply with 10 U.S.C. 2207.
(ii) Use the clause at 252.203–7000,
Requirements Relating to Compensation
of Former DoD Officials, as prescribed
in 203.171–4(a), to comply with section
847 of Public Law 110–181.
(iii) Use the clause at 252.203–7003,
Agency Office of the Inspector General,
as prescribed in 203.1004(a), to comply
with section 6101 of Public Law 110–
252 and 41 U.S.C. 3509.
(iv) Use the provision at 252.203–
7005, Representation Relating to
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Compensation of Former DoD Officials,
as prescribed in 203.171–4(b).
(v) Use the provision at 252.204–7011,
Alternative Line Item Structure, as
prescribed in 204.7109(b).
(vi) Use the clause at 252.205–7000,
Provision of Information to Cooperative
Agreement Holders, as prescribed in
205.470, to comply with 10 U.S.C. 2416.
(vii) Use the provision at 252.209–
7001, Disclosure of Ownership or
Control by the Government of a
Terrorist Country, as prescribed in
209.104–70(a), to comply with 10 U.S.C
2327(b).
(viii) Use the clause at 252.211–7003,
Item Identification and Valuation, as
prescribed in 211.274–6(a).
(ix) Use the provision at 252.211–
7006, Passive Radio Frequency
Identification, as prescribed in 211.275–
3.
(x) Use the clause at 252.219–7003,
Small Business Subcontracting Plan
(DoD Contracts), as prescribed in
219.708(b)(1)(A)(1), to comply with 15
U.S.C. 637. Use the clause with its
Alternate I as prescribed in
219.708(b)(1)(A)(2).
(xi) Use the clause at 252.219–7004,
Small Business Subcontracting Plan
(Test Program), as prescribed in
219.708(b)(1)(B), to comply with 15
U.S.C. 637 note.
(xii) Use the provision at 252.225–
7000, Buy American Act—Balance of
Payments Program Certificate, as
prescribed in 225.1101(1)(i), to comply
with 41 U.S.C. chapter 83 and Executive
Order 10582 of December 17, 1954,
Prescribing Uniform Procedures for
Certain Determinations Under the BuyAmerican Act. Use the provision with
its Alternate I as prescribed in
225.1101(1)(ii).
(xiii) Use the clause at 252.225–7001,
Buy American Act and Balance of
Payments Program, as prescribed in
225.1101(2)(i), to comply with 41 U.S.C.
chapter 83 and Executive Order 10582
of December 17, 1954, Prescribing
Uniform Procedures for Certain
Determinations Under the BuyAmerican Act. Use the clause with its
Alternate I as prescribed in
225.1101(2)(ii).
(xiv) Use the clause at 252.225–7008,
Restriction on Acquisition of Specialty
Metals, as prescribed in 225.7003–
5(a)(1), to comply with 10 U.S.C. 2533b.
(xv) Use the clause at 252.225–7009,
Restriction on Acquisition of Certain
Articles Containing Specialty Metals, as
prescribed in 225.7003–5(a)(2), to
comply with 10 U.S.C. 2533b.
(xvi) Use the provision at 252.225–
7010, Commercial Derivative Military
Article—Specialty Metals Compliance
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Certificate, as prescribed in 225.7003–
5(b), to comply with 10 U.S.C. 2533b.
(xvii) Use the clause at 252.225–7012,
Preference for Certain Domestic
Commodities, as prescribed in
225.7002–3(a), to comply with 10 U.S.C.
2533a.
(xviii) Use the clause at 252.225–
7015, Restriction on Acquisition of
Hand or Measuring Tools, as prescribed
in 225.7002–3(b), to comply with 10
U.S.C. 2533a.
(xix) Use the clause at 252.225–7016,
Restriction on Acquisition of Ball and
Roller Bearings, as prescribed in
225.7009–5, to comply with section
8065 of Public Law 107–117 and the
same restriction in subsequent DoD
appropriations acts.
(xx) Use the clause at 252.225–7017,
Photovoltaic Devices, as prescribed in
225.7017–4(a), to comply with section
846 of Public Law 111–383.
(xxi) Use the provision at 252.225–
7018, Photovoltaic Devices—Certificate,
as prescribed in 225.7017–4(b), to
comply with section 846 of Public Law
111–383.
(xxii) Use the provision at 252.225–
7020, Trade Agreements Certificate, as
prescribed in 225.1101(5)(i), to comply
with 19 U.S.C. 2501–2518 and 19 U.S.C.
3301 note. Use the provision with its
Alternate I as prescribed in
225.1101(5)(ii), to comply with sections
886 and 892 of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181).
(xxiii) Use the clause at 252.225–
7021, Trade Agreements, as prescribed
in 225.1101(6)(i), to comply with 19
U.S.C. 2501–2518 and 19 U.S.C. 3301
note. Use the clause with its Alternate
I as prescribed in 225.1101(6)(ii), to
comply with sections 886 and 892 of the
National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110–181). Use
the clause with its Alternate II as
prescribed in 225.1101(6)(iii).
(xxiv) Use the provision at 252.225–
7022, Trade Agreements Certificate—
Inclusion of Iraqi End Products, as
prescribed in 225.1101(7), to comply
with section 886 of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181).
(xxv) Use the provision at 252.225–
7023, Preference for Products or
Services from Iraq or Afghanistan, as
prescribed in 225.7703–5(a), to comply
with section 886 of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181).
(xxvi) Use the clause at 252.225–7024,
Requirement for Products or Services
from Iraq or Afghanistan, as prescribed
in 225.7703–5(b), to comply with
sections 886 and 892 of the National
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Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110–181).
(xxvii) Use the clause at 252.225–
7026, Acquisition Restricted to Products
or Services from Iraq or Afghanistan, as
prescribed in 225.7703–5(c), to comply
with sections 886 and 892 of the
National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110–181).
(xxviii) Use the clause at 252.225–
7027, Restriction on Contingent Fees for
Foreign Military Sales, as prescribed in
225.7307(a), to comply with 22 U.S.C.
2779.
(xxix) Use the clause at 252.225–7028,
Exclusionary Policies and Practices of
Foreign Governments, as prescribed in
225.7307(b), to comply with 22 U.S.C.
2755.
(xxx) Use the provision at 252.225–
7031, Secondary Arab Boycott of Israel,
as prescribed in 225.7605, to comply
with 10 U.S.C. 2410i.
(xxxi) Use the provision at 252.225–
7035, Buy American Act—Free Trade
Agreements—Balance of Payments
Program Certificate, as prescribed in
225.1101(10)(i), to comply with 41
U.S.C. chapter 83 and 19 U.S.C. 3301
note. Use the provision with its
Alternate I as prescribed in
225.1101(10)(ii). Use the provision with
its Alternate II as prescribed in
225.1101(10)(iii). Use the provision with
its Alternate III as prescribed in
225.1101(10)(iv), to comply with
sections 886 and 892 of the National
Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110–181).
(xxxii) Use the clause at 252.225–
7036, Buy American Act—Free Trade
Agreements—Balance of Payments
Program, as prescribed in
225.1101(11)(i)(A), to comply with 41
U.S.C. chapter 83 and 19 U.S.C. 3301
note. Use the clause with its Alternate
I as prescribed in 225.1101(11)(i)(B).
Use the clause with its Alternate II as
prescribed in 225.1101(11)(i)(A), to
comply with sections 886 and 892 of the
National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110–181). Use
the clause with its Alternate III as
prescribed in 225.1101(11)(i)(B), to
comply with sections 886 and 892 of the
National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110–181).
(xxxiii) Use the provision at 252.225–
7037, Evaluation of Offers for Air
Circuit Breakers, as prescribed in
225.7006–4(a), to comply with 10 U.S.C.
2534(a)(3) as amended by section 814 of
the National Defense Authorization Act
for Fiscal Year 1995 (Pub. L. 103–337)
and section 4102(i) of the Federal
Acquisition Streamlining Act of 1994
(Pub. L. 103–355).
(xxxiv) Use the clause at 252.225–
7038, Restriction on Acquisition of Air
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Circuit Breakers, as prescribed in
225.7006–4(b), to comply with 10 U.S.C.
2534(a)(3) as amended by section 814 of
the National Defense Authorization Act
for Fiscal Year 1995 (Pub. L. 103–337)
and section 4102(i) of the Federal
Acquisition Streamlining Act of 1994
(Pub. L. 103–355).
(xxxv) Use the clause at 252.225–
7039, Contractors Performing Private
Security Functions, as prescribed in
225.370–6, to comply with section 862
of Public Law 110–181, as amended by
section 853 of Public Law 110–417 and
sections 831 and 832 of Public Law
111–383.
(xxxvi) Use the clause at 252.225–
7040, Contractor Personnel Authorized
to Accompany U.S. Armed Forces
Deployed Outside the United States, as
prescribed in 225.7402–5(a).
(xxxvii) Use the clause at 252.225–
7043, Antiterrorism/Force Protection
Policy for Defense Contractors Outside
the United States, as prescribed in
225.7403–2.
(xxxviii) Use the clause at 252.226–
7001, Utilization of Indian
Organizations, Indian-Owned Economic
Enterprises, and Native Hawaiian Small
Business Concerns, as prescribed in
226.104, to comply with section 8021 of
Public Law 107–248 and similar
sections in subsequent DoD
appropriations acts.
(xxxix) Use the clause at 252.227—
7013, Rights in Technical Data–
Noncommercial Items, as prescribed in
227.7103–6(a). Use the clause with its
Alternate I as prescribed in 227.7103–
6(b)(1). Use the clause with its Alternate
II as prescribed in 227.7103–6(b)(2), to
comply with 10 U.S.C. 7317 and 17
U.S.C. 1301, et seq.
(xl) Use the clause at 252.227–7015,
Technical Data—Commercial Items, as
prescribed in 227.7102–4(a)(1), to
comply with 10 U.S.C. 2320. Use the
clause with its Alternate I as prescribed
in 227.7102–4(a)(2), to comply with 10
U.S.C. 7317 and 17 U.S.C. 1301, et seq.
(xli) Use the clause at 252.227–7037,
Validation of Restrictive Markings on
Technical Data, as prescribed in part
227.
(xlii) Use the clause at 252.232–7003,
Electronic Submission of Payment
Requests and Receiving Reports, as
prescribed in 232.7004, to comply with
10 U.S.C. 2227.
(xliii) Use the clause at 252.232–7009,
Mandatory Payment by
Governmentwide Commercial Purchase
Card, as prescribed in 232.1110.
(xliv) Use the clause at 252.232–7010,
Levies on Contract Payments, as
prescribed in 232.7102.
(xlv) Use the clause at 252.232–7011,
Payments in Support of Emergencies
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and Contingency Operations, as
prescribed in 232.908.
(xlvi) Use the clause at 252.237–7010,
Prohibition on Interrogation of
Detainees by Contractor Personnel, as
prescribed in 237.173–5, to comply with
section 1038 of Public Law 111–84.
(xlvii) Use the clause at 252.237–
7019, Training for Contractor Personnel
Interacting with Detainees, as prescribed
in 237.171–4, to comply with section
1092 of Public Law 108–375.
(xlviii) Use the clause at 252.243–
7002, Requests for Equitable
Adjustment, as prescribed in 243.205–
71, to comply with 10 U.S.C. 2410.
(xlix) Use the clause at 252.244–7000,
Subcontracts for Commercial Items, as
prescribed in 244.403.
(l) Use the clause at 252.246–7003,
Notification of Potential Safety Issues,
as prescribed in 246.371(a).
(li) Use the clause at 252.246–7004,
Safety of Facilities, Infrastructure, and
Equipment for Military Operations, as
prescribed in 246.270–4, to comply with
section 807 of Public Law 111–84.
(lii) Use the clause at 252.247–7003,
Pass-Through of Motor Carrier Fuel
Surcharge Adjustment to the Cost
Bearer, as prescribed in 247.207, to
comply with section 884 of Public Law
110–417.
(liii) Use the provision at 252.247–
7022, Representation of Extent of
Transportation by Sea, as prescribed in
247.574(a).
(liv) Use the clause at 252.247–7023,
Transportation of Supplies by Sea, as
prescribed in 247.574(b)(1), to comply
with the Cargo Preference Act of 1904
(10 U.S.C. 2631(a)). Use the clause with
its Alternate I as prescribed in
247.574(b)(2). Use the clause with its
Alternate II as prescribed in
247.574(b)(3). Use the clause with its
Alternate III as prescribed in
247.574(b)(4).
(lv) Use the clause at 252.247–7024,
Notification of Transportation of
Supplies by Sea, as prescribed in
247.574(c).
(lvi) Use the clause 252.247–7025,
Reflagging or Repair Work, as prescribed
in 247.574(d), to comply with 10 U.S.C.
2631(b).
(lvii) Use the provision at 252.247–
7026, Evaluation Preference for Use of
Domestic Shipyards—Applicable to
Acquisition of Carriage by Vessel for
DoD Cargo in the Coastwise or
Noncontiguous Trade, as prescribed in
247.574(e), to comply with section 1017
of Public Law 109–364.
(lviii) Use the clause at 252.247–7027,
Riding Gang Member Requirements, as
prescribed in 247.574(f), to comply with
section 3504 of the National Defense
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Authorization Act for Fiscal Year 2009
(Pub. L. 110–417).
PART 219—SMALL BUSINESS
PROGRAMS
10. Section 219.708(b)(1) is revised to
read as follows:
219.708
Contract clauses.
(b)(1)(A) Use the clause at 252.219–
7003, Small Business Subcontracting
Plan (DoD Contracts)—
(1) In solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items that
contain the clause at FAR 52.219–9,
Small Business Subcontracting Plan.
(2) With its Alternate I in solicitations
and contracts, including solicitations
and contracts using FAR part 12
procedures for the acquisition of
commercial items, that use Alternate III
of 52.219–9, Small Business
Subcontracting Plan.
(B) In solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, with
contractors that have comprehensive
subcontracting plans approved under
the test program described in 219.702,
use the clause at 252.219–7004, Small
Business Subcontracting Plan (Test
Program), instead of the clauses at
252.219–7003, Small Business
Subcontracting Plan (DoD Contracts),
and FAR 52.219–9, Small Business
Subcontracting Plan. Include—
(1) FAR clause 52.219–9, Small
Business Subcontracting Plan, and
252.219–7003, Small Business
Subcontracting Plan (DoD Contracts), in
the contract for purposes of the
contractor flowing these clauses down
to subcontractors, except
(2) When the contract will not be
reported in FPDS (see FAR 4.606(c)(5)),
include FAR clause 52.219–9, Small
Business Subcontracting Plan, with its
Alternate III and 252.219–7003, Small
Business Subcontracting Plan (DoD
Contracts), with its Alternate I in the
contract for purposes of the contractor
flowing these clauses down to
subcontractors.
*
*
*
*
*
PART 225—FOREIGN ACQUISITION
11. In section 225.370–6, the
introductory text is revised to read as
follows:
225.370–6
Contract clause.
Use the clause at 252.225–7039,
Contractors Performing Private Security
Functions, in all solicitations and
contracts, including solicitations and
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contracts using FAR part 12 procedures
for the acquisition of commercial items,
to be performed in areas of—
*
*
*
*
*
12. Section 225.1101 is amended by—
a. Revising paragraph (1);
b. Revising the introductory text of
paragraph (2)(i); and
c. Revising paragraphs (2)(ii); (5);
(6)(i), (ii), (iii); (7); (10); and (11)(i).
The revisions read as follows:
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225.1101
Acquisition of supplies.
(1)(i) Use the provision at 252.225–
7000, Buy American Act—Balance of
Payments Program Certificate, instead of
the provision at FAR 52.225–2, Buy
American Act Certificate. Use the
provision in any solicitation, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, that includes the
clause at 252.225–7001, Buy American
Act and Balance of Payments Program.
(ii) Use the provision with its
Alternate I in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, when the acquisition
is of end products listed in 225.401–70
in support of operations in Afghanistan.
(2)(i) Use the clause at 252.225–7001,
Buy American Act and Balance of
Payments Program, instead of the clause
at FAR 52.225–1, Buy American Act—
Supplies, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items,
unless—
*
*
*
*
*
(ii) Use the clause with its Alternate
I in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, when
the acquisition is of end products listed
in 225.401–70 in support of operations
in Afghanistan
*
*
*
*
*
(5)(i) Except as provided in paragraph
(7) of this section, use the provision at
252.225–7020, Trade Agreements
Certificate, instead of the provision at
FAR 52.225–6, Trade Agreements
Certificate, in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, that include the
clause at 252.225–7021, Trade
Agreements.
(ii) Use the provision with its
Alternate I in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, when the acquisition
is of end products in support of
operations in Afghanistan.
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(6)(i) Use the clause at 252.225–7021,
Trade Agreements, instead of the clause
at FAR 52.225–5, Trade Agreements, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, if the World Trade
Organization Government Procurement
Agreement applies.
(ii) Use the clause with its Alternate
I in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, that
include the clause at 252.225–7024,
Requirement for Products or Services
from Iraq or Afghanistan, unless the
clause at 252.225–7024 has been
modified to provide a preference only
for the products of Afghanistan.
(iii) Use the clause with its Alternate
II in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, when
the acquisition is of end products in
support of operations in Afghanistan
and Alternate I is not applicable.
*
*
*
*
*
(7) Use the provision at 252.225–7022,
Trade Agreements Certificate—
Inclusion of Iraqi End Products, instead
of the provision at FAR 52.225–6, Trade
Agreements Certificate, in solicitations,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items, that include the
clause at 252.225–7021, Trade
Agreements, with its Alternate I.
*
*
*
*
*
(10)(i) Use the provision at 252.225–
7035, Buy American Act—Free Trade
Agreements—Balance of Payments
Program Certificate, instead of the
provision at FAR 52.225–4, Buy
American Act—Free Trade
Agreements—Israeli Trade Act
Certificate, in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, that include the
clause at 252.225–7036, Buy American
Act—Free Trade Agreements—Balance
of Payments Program.
(ii) Use the provision with its
Alternate I in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, when the clause at
252.225–7036 is used with its Alternate
I.
(iii) Use the provision with its
Alternate II in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, when the clause at
252.225–7036 is used with its Alternate
II.
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(iv) Use the provision with its
Alternate III in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, when the clause at
252.225–7036 is used with its Alternate
III.
(11)(i) Except as provided in
paragraph (11)(ii) of this section, use the
clause at 252.225–7036, Buy American
Act—Free Trade Agreements—Balance
of Payments Program, instead of the
clause at FAR 52.225–3, Buy American
Act—Free Trade Agreements—Israeli
Trade Act, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, for the
items listed at 225.401–70, when the
estimated value equals or exceeds
$25,000, but is less than $202,000, and
a Free Trade Agreement applies to the
acquisition.
(A) Use the basic clause in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, when the estimated
value equals or exceeds $77,494, except
if the acquisition is of end products in
support of operations in Afghanistan,
use with its Alternate II.
(B) Use the clause with its Alternate
I in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, when
the estimated value equals or exceeds
$25,000 but is less than $77,494, except
if the acquisition is of end products in
support of operations in Afghanistan,
use with its Alternate III.
*
*
*
*
*
13. Section 225.7002–3 is revised to
read as follows:
225.7002–3
Contract clauses.
Unless an exception applies—
(a) Use the clause at 252.225–7012,
Preference for Certain Domestic
Commodities, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
exceeding the simplified acquisition
threshold.
(b) Use the clause at 252.225–7015,
Restriction on Acquisition of Hand or
Measuring Tools, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
exceeding the simplified acquisition
threshold that require delivery of hand
or measuring tools.
14. In section 225.7003–5, the
introductory text of paragraphs (a)(1),
(a)(2), and (b) are revised to read as
follows:
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225.7003–5 Solicitation provision and
contract clauses.
225.7017–4 Solicitation provisions and
contract clauses.
(a) * * *
(1) Use the clause at 252.225–7008,
Restriction on Acquisition of Specialty
Metals, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, that—
*
*
*
*
*
(2) Use the clause at 252.225–7009,
Restriction on Acquisition of Certain
Articles Containing Specialty Metals, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, that—
*
*
*
*
*
(b) Use the provision at 252.225–7010,
Commercial Derivative Military
Article—Specialty Metals Compliance
Certificate, in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items—
*
*
*
*
*
15. In section 225.7006–4, the
introductory text of paragraphs (a) and
(b) are revised to read as follows:
(a)(1) Use the clause at 252.225–7017,
Photovoltaic Devices, in solicitations,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items, for a contract that—
*
*
*
*
*
(2) Use the clause in the resultant
contract, including contracts using FAR
part 12 procedures for the acquisition of
commercial items, if it is a covered
contract (i.e., will result in DoD
ownership of photovoltaic devices, by
means other than DoD purchase as end
products).
(b) Use the provision at 252.225–7018,
Photovoltaic Devices—Certificate, in
solicitations, including solicitations
using FAR part 12 procedures for the
acquisition of commercial items,
containing the clause at 252.225–7017.
18. Section 225.7307 is revised to read
as follows:
225.7006–4 Solicitation provision and
contract clause.
(a) Use the provision at 252.225–7037,
Evaluation of Offers for Air Circuit
Breakers, in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, requiring air circuit
breakers for naval vessels unless—
*
*
*
*
*
(b) Use the clause at 252.225–7038,
Restriction on Acquisition of Air Circuit
Breakers, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items,
requiring air circuit breakers for naval
vessels unless—
*
*
*
*
*
16. In section 225.7009–5, the
introductory text is revised to read as
follows:
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225.7009–5
Contract clause.
Use the clause at 252.225–7016,
Restriction on Acquisition of Ball and
Roller Bearings, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
unless—
*
*
*
*
*
17. Section 225.7017–4 is amended
by—
a. Revising the introductory text of
paragraph (a)(1); and
b. Revising paragraphs (a)(2) and (b).
The revisions read as follows:
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225.7307
Contract clauses.
(a) Use the clause at 252.225–7027,
Restriction on Contingent Fees for
Foreign Military Sales, in solicitations
and contracts, including solicitations
and contracts using FAR part 12
procedures for the acquisition of
commercial items, for FMS. Insert in
paragraph (b)(1) of the clause the
name(s) of any foreign country
customer(s) listed in 225.7303–4(b).
(b) Use the clause at 252.225–7028,
Exclusionary Policies and Practices of
Foreign Governments, in solicitations
and contracts, including solicitations
and contracts using FAR part 12
procedures for the acquisition of
commercial items, for the purchase of
supplies and services for international
military education training and FMS.
19. In section 225.7402–5(a), the
introductory text is revised to read as
follows:
225.7402–5
Contract clauses.
(a) Use the clause at 252.225–7040,
Contractor Personnel Authorized to
Accompany U.S. Armed Forces
Deployed Outside the United States,
instead of the clause at FAR 52.225–19,
Contractor Personnel in a Designated
Operational Area or Supporting a
Diplomatic or Consular Mission Outside
the United States, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
that authorize contractor personnel to
accompany U.S. Armed Forces
deployed outside the United States in—
*
*
*
*
*
20. In section 225.7403–2, the
introductory text is revised to read as
follows:
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225.7403–2
20605
Contract clause.
Use the clause at 252.225–7043,
Antiterrorism/Force Protection Policy
for Defense Contractors Outside the
United States, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
that require performance or travel
outside the United States, except for
contracts with—
*
*
*
*
*
21. Section 225.7605 is revised to read
as follows:
225.7605
Solicitation provision.
Unless an exception applies or a
waiver has been granted in accordance
with 225.7604, use the provision at
252.225–7031, Secondary Arab Boycott
of Israel, in all solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items.
22. Section 225.7703–5 is amended
by—
a. Revising the introductory text of
paragraph (a);
b. Revising paragraph (b); and
c. Revising the introductory text of
paragraph (c)(1).
The revisions read as follows:
225.7703–5 Solicitation provisions and
contract clauses.
(a) Use the provision at 252.225–7023,
Preference for Products or Services from
Iraq or Afghanistan, in solicitations,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items, that provide a
preference for products or services from
Iraq or Afghanistan in accordance with
225.7703–1(a)(1). The contracting
officer—
*
*
*
*
*
(b) Use the clause at 252.225–7024,
Requirement for Products or Services
from Iraq or Afghanistan, in
solicitations, including solicitations
using FAR part 12 procedures for the
acquisition of commercial items, that
include the provision at 252.225–7023,
Preference for Products or Services from
Iraq or Afghanistan, and in the resulting
contract. If the provision at 252.225–
7023 has been modified to provide a
preference exclusively for Iraq or
exclusively for Afghanistan, in
accordance with paragraph (a)(1) of this
subsection, the clause at 252.225–7024
shall be modified accordingly.
(c)(1) Use the clause at 252.225–7026,
Acquisition Restricted to Products or
Services from Iraq or Afghanistan, in
solicitations and contracts, including
solicitations and contracts using FAR
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part 12 procedures for the acquisition of
commercial items, that—
*
*
*
*
*
PART 226—OTHER SOCIOECONOMIC
PROGRAMS
23. Section 226.104 is revised to read
as follows:
226.104
Contract clause.
Use the clause at 252.226–7001,
Utilization of Indian Organizations,
Indian-Owned Economic Enterprises,
and Native Hawaiian Small Business
Concerns, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, for
supplies or services exceeding $500,000
in value.
Subpart 227.71—Rights in Technical
Data
24. In section 227.7102–4, paragraphs
(a) and (c) are revised to read as follows:
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227.7102–4
Contract clauses.
(a)(1) Except as provided in paragraph
(b) of this subsection, use the clause at
252.227–7015, Technical Data–
Commercial Items, in all solicitations
and contracts, including solicitations
and contracts using FAR part 12
procedures for the acquisition of
commercial items, when the contractor
will be required to deliver technical
data pertaining to commercial items,
components, or processes.
(2) Use the clause at 252.227–7015
with its Alternate I in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
for the development or delivery of a
vessel design or any useful article
embodying a vessel design.
*
*
*
*
*
(c) Use the clause at 252.227–7037,
Validation of Restrictive Markings on
Technical Data, in all solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items
that include the clause at 252.227–7015
or the clause at 252.227–7013.
25. Section 227.7103–6 is amended
by—
a. Revising paragraph (a);
b. Revising the introductory text of
paragraph (b)(1); and
c. Revising paragraph (b)(2).
The revisions read as follows:
227.7103–6
Contract clauses.
(a) Use the clause at 252.227–7013,
Rights in Technical Data–
Noncommercial Items, in solicitations
and contracts, including solicitations
and contracts using FAR part 12
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procedures for the acquisition of
commercial items, when the successful
offeror(s) will be required to deliver to
the Government technical data
pertaining to noncommercial items, or
pertaining to commercial items for
which the Government will have paid
for any portion of the development costs
(in which case the clause at 252.227–
7013 will govern the technical data
pertaining to any portion of a
commercial item that was developed in
any part at Government expense, and
the clause at 252.227–7015 will govern
the technical data pertaining to any
portion of a commercial item that was
developed exclusively at private
expense). Do not use the clause when
the only deliverable items are computer
software or computer software
documentation (see 227.72), commercial
items developed exclusively at private
expense (see 227.7102–4), existing
works (see 227.7105), special works (see
227.7106), or when contracting under
the Small Business Innovation Research
Program (see 227.7104). Except as
provided in 227.7107–2, do not use the
clause in architect-engineer and
construction contracts.
(b)(1) Use the clause at 252.227–7013
with its Alternate I in research
solicitations and contracts, including
research solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, when
the contracting officer determines, in
consultation with counsel, that public
dissemination by the contractor would
be—
*
*
*
*
*
(2) Use the clause at 252.227–7013
with its Alternate II in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
for the development or delivery of a
vessel design or any useful article
embodying a vessel design.
*
*
*
*
*
PART 232—CONTRACT FINANCING
26. Section 232.908 is revised to read
as follows:
232.908
Contract clauses.
Use the clause at 252.232–7011,
Payments in Support of Emergencies
and Contingency Operations, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, in addition to either
the approved clause prescribed in FAR
32.908 or paragraph (i)(2) of 52.212–4 in
acquisitions that meet the applicability
criteria at 232.901(1).
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27. In section 232.1110, the
introductory text is revised to read as
follows:
232.1110 Solicitation provision and
contract clauses.
Use the clause at 252.232–7009,
Mandatory Payment by
Governmentwide Commercial Purchase
Card, in solicitations, contracts, and
agreements, including solicitations,
contracts, and agreements using FAR
part 12 procedures for the acquisition of
commercial items, when—
*
*
*
*
*
28. Section 232.7004 is revised to read
as follows:
232.7004
Contract clause.
Except as provided in 232.7002(a),
use the clause at 252.232–7003,
Electronic Submission of Payment
Requests and Receiving Reports, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items.
29. Section 232.7102 is revised to read
as follows:
232.7102
Contract clause.
Use the clause at 252.232–7010,
Levies on Contract Payments, in all
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, other than those for
micropurchases.
PART 237—SERVICE CONTRACTING
30. In section 237.171–4, the
introductory text is revised to read as
follows:
237.171–4
Contract clause.
Use the clause at 252.237–7019,
Training for Contractor Personnel
Interacting with Detainees, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, for the acquisition of
services if—
*
*
*
*
*
31. Section 237.173–5 is revised to
read as follows:
237.173–5
Contract clause.
Insert the clause at 252.237–7010,
Prohibition on Interrogation of
Detainees by Contractor Personnel, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, for the provision of
services.
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PART 243—CONTRACT
MODIFICATIONS
32. Section 243.205–71 is revised to
read as follows:
243.205–71 Requests for equitable
adjustment.
Use the clause at 252.243–7002,
Requests for Equitable Adjustment, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, estimated to exceed
the simplified acquisition threshold.
246.371
issues.
PART 244—SUBCONTRACTING
POLICIES AND PROCEDURES
33. Section 244.403 is revised to read
as follows:
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244.403
Contract clause.
Use the clause at 252.244–7000,
Subcontracts for Commercial Items, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, that contain any of
the following clauses:
(1) 252.211–7003, Item Identification
and Valuation.
(2) 252.225–7009, Restriction on
Acquisition of Certain Articles
Containing Specialty Metals.
(3) 252.225–7039, Contractors
Performing Private Security Functions.
(4) 252.227–7013, Rights in Technical
Data—Noncommercial Items.
(5) 252.227–7015, Technical Data–
Commercial Items.
(6) 252.227–7037, Validation of
Restrictive Markings on Technical Data.
(7) 252.236–7013, Requirement for
Competition Opportunity for American
Steel Producers, Fabricators, and
Manufacturers.
(8) 252.237–7010, Prohibition on
Interrogation of Detainees by Contractor
Personnel.
(9) 252.237–7019, Training for
Contractor Personnel Interacting with
Detainees.
(10) 252.246–7003, Notification of
Potential Safety Issues.
(11) 252.247–7003, Pass-Through of
Motor Carrier Fuel Surcharge
Adjustment to the Cost Bearer.
(12) 252.247–7023, Transportation of
Supplies by Sea.
(13) 252.247–7024, Notification of
Transportation of Supplies by Sea.
PART 246—QUALITY ASSURANCE
34. Section 246.270–4 is revised to
read as follows:
246.270–4
Contract clause.
Use the clause at 252.246–7004,
Safety of Facilities, Infrastructure, and
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Equipment for Military Operations, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, for the construction,
installation, repair, maintenance, or
operation of facilities, infrastructure, or
for equipment configured for
occupancy, planned for use by DoD
military or civilian personnel during
military operations.
35. In section 246.371(a), the
introductory text is revised to read as
follows:
Notification of potential safety
(a) Use the clause at 252.246–7003,
Notification of Potential Safety Issues,
in solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, for the acquisition
of—
*
*
*
*
*
PART 247—TRANSPORTATION
36. Section 247.207 is revised to read
as follows:
247.207 Solicitation provisions, contract
clauses, and special requirements.
Use the clause at 252.247–7003, PassThrough of Motor Carrier Fuel
Surcharge Adjustment to the Cost
Bearer, in solicitations and contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, for
carriage in which a motor carrier,
broker, or freight forwarder will provide
or arrange truck transportation services
that provide for a fuel-related
adjustment.
37. Section 247.571 is revised to read
as follows:
247.571
Definitions.
(a) ‘‘Components,’’ ‘‘foreign flag
vessel,’’ ‘‘ocean transportation,’’
‘‘supplies,’’ and ‘‘U.S.-flag vessel,’’ as
used in this subpart, have the meaning
given in the clause at 252.247–7023,
Transportation of Supplies by Sea.
(b) ‘‘Reflagging or repair work,’’ as
used in this subpart, has the meaning
given in the clause at 252.247–7025,
Reflagging or Repair Work.
(c) ‘‘Covered vessel,’’ ‘‘foreign
shipyard,’’ ‘‘overhaul, repair, and
maintenance work,’’ ‘‘shipyard,’’ and
‘‘U.S. shipyard,’’ as used in this subpart,
have the meaning given in the provision
at 252.247–7026, Evaluation Preference
for Use of Domestic Shipyards—
Applicable to Acquisition of Carriage by
Vessel for DoD Cargo in the Coastwise
or Noncontiguous Trade.
38. Section 247.572 is amended by—
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a. Revising the introductory text of
paragraph (a); and
b. Adding introductory text to
paragraph (c).
The revisions read as follows:
247.572
Policy.
(a) In accordance with 10 U.S.C.
2631(a), DoD contractors must transport
supplies, as defined in the clause at
252.247–7023, Transportation of
Supplies by Sea, exclusively on U.S.flag vessels unless—
*
*
*
*
*
(c) In accordance with 10 U.S.C.
2631(b)—
*
*
*
*
*
39. Section 247.574 is amended by—
a. Revising the introductory text of
paragraph (a); and
b. Revising paragraphs (b)(1), (c), (d),
(e), and (f).
The revisions read as follows:
247.574 Solicitation provisions and
contract clauses.
(a) Use the provision at 252.247–7022,
Representation of Extent of
Transportation by Sea, in all
solicitations, including solicitations
using FAR part 12 procedures for the
acquisition of commercial items,
except—
*
*
*
*
*
(b)(1) Use the clause at 252.247–7023,
Transportation of Supplies by Sea, in all
solicitations and resultant contracts,
including solicitations and contracts
using FAR part 12 procedures for the
acquisition of commercial items, except
those for direct purchase of ocean
transportation services.
*
*
*
*
*
(c) Use the clause at 252.247–7024,
Notification of Transportation of
Supplies by Sea, in all contracts,
including contracts using FAR part 12
procedures for the acquisition of
commercial items, for which the offeror
made a negative response to the inquiry
in the provision at 252.247–7022,
Representation of Extent of
Transportation by Sea.
(d) Use the clause at 252.247–7025,
Reflagging or Repair Work, in all time
charter solicitations and contracts,
including time charter solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial items,
for the use of a vessel for the
transportation of supplies, unless a
waiver has been granted in accordance
with 247.572(c)(2).
(e) Use the provision at 252.247–7026,
Evaluation Preference for Use of
Domestic Shipyards–Applicable to
Acquisition of Carriage by Vessel for
DoD Cargo in the Coastwise or
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Noncontiguous Trade, in solicitations,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items, that require a
covered vessel for carriage of cargo for
DoD. See 247.573–3 for reporting of the
information received from offerors in
response to the provision. See 247.573–
2(c)(3) for the required evaluation
criterion.
(f) Use the clause at 252.247–7027,
Riding Gang Member Requirements, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, for the charter of, or
contract for carriage of cargo by, a U.S.flag vessel documented under chapter
121 of title 46 U.S.C. Follow the
procedures at PGI 247.574.
252.225–7009 Restriction on Acquisition
of Certain Articles Containing Specialty
Metals.
*
*
*
*
*
(e) Subcontracts. The Contractor shall
insert the substance of this clause in
subcontracts, including subcontracts for
commercial items, for items containing
specialty metals, to the extent necessary
to ensure compliance of the end
products that the Contractor will deliver
to the Government. When inserting the
substance of this clause in subcontracts,
the Contractor shall—
*
*
*
*
*
45. Section 252.225–7039 is amended
by—
a. Removing from the clause heading
‘‘(AUG 2011)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (e) to read as
follows:
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.225–7039 Contractors Performing
Private Security Functions.
252.203–7000
*
[Amended]
40. Section 252.203–7000 is amended
by—
a. Removing from the introductory
paragraph ‘‘201.171–4’’ and adding
‘‘201.171–4(a)’’ in its place; and
b. Removing from the clause heading
‘‘(JUN 2011)’’ and adding ‘‘(DATE)’’ in
its place.
41. Section 252.211–7003 is amended
by—
a. Removing from the clause heading
‘‘(JUN 2011)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (g) to read as
follows:
252.211–7003
Valuation.
Item Identification and
*
*
*
*
*
(g) Subcontracts. If the Contractor
acquires by subcontract, any item(s) for
which unique item identification is
required in accordance with paragraph
(c)(1) of this clause, the Contractor shall
include this clause, including this
paragraph (g), in the applicable
subcontract(s), including subcontracts
for commercial items.
*
*
*
*
*
252.212–7000
[Removed]
42. Section 252.212–7000 is removed.
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[Removed]
43. Section 252.212–7001 is removed.
44. Section 252.225–7009 is amended
by—
a. Removing from the clause heading
‘‘(JAN 2011)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising the introductory text of
paragraph (e) to read as follows:
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*
*
*
*
(e) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (e), in all
subcontracts, including subcontracts for
commercial items, that will be
performed in areas of contingency
operations, complex contingency
operations, or other military operations
or exercises designated by the
Combatant Commander.
*
*
*
*
*
46. Section 252.227–7013 is amended
by—
a. Removing from the clause heading
‘‘(FEB 2012)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (k)(2) to read as
follows:
252.227–7013 Rights in Technical Data–
Noncommercial Items.
*
*
*
*
*
(k) * * *
(2) Whenever any technical data for
noncommercial items, or for commercial
items developed in any part at
Government expense, is to be obtained
from a subcontractor or supplier for
delivery to the Government under this
contract, the Contractor shall use this
same clause in the subcontract or other
contractual instrument, including
subcontracts or other contractual
instruments for commercial items, and
require its subcontractors or suppliers to
do so, without alteration, except to
identify the parties. This clause will
govern the technical data pertaining to
noncommercial items, or to any portion
of a commercial item that was
developed in any part at Government
expense, and the clause at 252.227–7015
will govern the technical data pertaining
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to any portion of a commercial item that
was developed exclusively at private
expense. No other clause shall be used
to enlarge or diminish the
Government’s, the Contractor’s, or a
higher-tier subcontractor’s or supplier’s
rights in a subcontractor’s or supplier’s
technical data.
*
*
*
*
*
47. Section 252.227–7015 is amended
by—
a. Removing from the clause heading
‘‘(DEC 2011)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (e)(2) to read as
follows:
252.227–7015
Items.
Technical Data–Commercial
*
*
*
*
*
(e) * * *
(2) Whenever any technical data
related to commercial items developed
in any part at private expense will be
obtained from a subcontractor or
supplier for delivery to the Government
under this contract, the Contractor shall
use this same clause in the subcontract
or other contractual instrument,
including subcontracts and other
contractual instruments for commercial
items, and require its subcontractors or
suppliers to do so, without alteration,
except to identify the parties. This
clause will govern the technical data
pertaining to any portion of a
commercial item that was developed
exclusively at private expense, and the
clause at 252.227–7013 will govern the
technical data pertaining to any portion
of a commercial item that was
developed in any part at Government
expense.
*
*
*
*
*
48. Section 252.227–7037 is amended
by—
a. Removing from the introductory
paragraph ‘‘227.7102–3(c)’’ and adding
‘‘227.7102–4(c)’’ in its place;
b. Removing from the clause heading
‘‘(SEP 2011)’’ and adding ‘‘(DATE)’’ in
its place; and
c. Revising paragraph (l) to read as
follows:
252.227–7037 Validation of Restrictive
Markings on Technical Data.
*
*
*
*
*
(l) Flowdown. The Contractor or
subcontractor agrees to insert this clause
in contractual instruments, including
subcontracts and other contractual
instruments for commercial items, with
its subcontractors or suppliers at any
tier requiring the delivery of technical
data.
*
*
*
*
*
49. Section 252.236–7013 is amended
by—
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a. Removing from the clause heading
‘‘(JAN 2009)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (c) to read as
follows:
252.236–7013 Requirement for
Competition Opportunity for American Steel
Producers, Fabricators, and Manufacturers.
*
*
*
*
*
(c) The Contractor shall insert the
substance of this clause, including this
paragraph (c), in any subcontract that
involves the acquisition of steel as a
construction material, including
subcontracts for the acquisition of
commercial items.
*
*
*
*
*
50. Section 252.237–7010 is amended
by—
a. Removing from the clause heading
‘‘(NOV 2010)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (c) to read as
follows:
252.237–7010 Prohibition on Interrogation
of Detainees by Contractor Personnel.
*
*
*
*
*
(c) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (c), in all
subcontracts, including subcontracts for
commercial items, that may require
subcontractor personnel to interact with
detainees in the course of their duties.
*
*
*
*
*
51. Section 252.237–7019 is amended
by—
a. Removing from the clause heading
‘‘(SEP 2006)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (c) to read as
follows:
252.237–7019 Training for Contractor
Personnel Interacting with Detainees.
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*
*
*
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*
*
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(c) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (c), in all
subcontracts, including subcontracts for
commercial items, that may require
subcontractor personnel to interact with
detainees in the course of their duties.
*
*
*
*
*
52. Section 252.244–7000 is revised to
read as follows:
252.244–7000 Subcontracts for
Commercial Items.
As prescribed in 244.403, use the
following clause:
SUBCONTRACTS FOR COMMERCIAL
ITEMS (DATE)
(a) The Contractor is not required to flow
down the terms of any Defense Federal
Acquisition Regulation Supplement clause in
subcontracts for commercial items at any tier
under this contract unless so specified in the
particular clause.
(b) While not required, the Contractor may
flow down to subcontracts for commercial
items a minimal number of additional
clauses necessary to satisfy its contractual
obligation.
(c) The Contractor shall include the terms
of this clause, including this paragraph (c), in
subcontracts awarded at any tier under this
contract, including subcontracts for the
acquisition of commercial items.
*
*
*
*
*
53. Section 252.246–7003 is amended
by—
a. Removing from the clause heading
‘‘(JAN 2007)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising the introductory text of
paragraph (f)(2) to read as follows:
252.246–7003 Notification of Potential
Safety Issues.
*
*
*
*
*
(f) * * *
(2) For those subcontracts, including
subcontracts for commercial items,
described in paragraph (f)(1) of this
clause, the Contractor shall require the
PO 00000
Frm 00038
Fmt 4702
Sfmt 9990
20609
subcontractor to provide the notification
required by paragraph (c) of this clause
to—
*
*
*
*
*
54. Section 252.247–7003 is amended
by—
a. Removing from the clause heading
‘‘(SEP 2010)’’ and adding ‘‘(DATE)’’ in
its place; and
b. Revising paragraph (c) to read as
follows:
252.247–7003 Pass-Through of Motor
Carrier Fuel Surcharge Adjustment to the
Cost Bearer.
*
*
*
*
*
(c) The Contractor shall insert the
substance of this clause, including this
paragraph (c), in all subcontracts,
including subcontracts for commercial
items, with motor carriers, brokers, or
freight forwarders.
*
*
*
*
*
55. Section 252.247–7023 is amended
by—
a. Removing from the clause heading
‘‘(May 2002)’’ and adding ‘‘(DATE)’’ in
its place;
b. Revising the introductory text of
paragraph (h); and
c. Removing from paragraphs (h)(1)
and (h)(2) ‘‘Part 2’’ and adding ‘‘part 2’’
in both places.
The revision reads as follows:
252.247–7023
by Sea.
Transportation of Supplies
*
*
*
*
*
(h) In the award of subcontracts, for
the types of supplies described in
paragraph (b)(2) of this clause, including
subcontracts for commercial items, the
Contractor shall flow down the
requirements of this clause as follows:
*
*
*
*
*
[FR Doc. 2012–8053 Filed 4–4–12; 8:45 am]
BILLING CODE 5001–06–P
E:\FR\FM\05APP1.SGM
05APP1
]]>Agencies
[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Proposed Rules]
[Pages 20598-20609]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8053]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 203, 204, 205, 209, 211, 212, 219, 225, 226, 227, 232,
237, 243, 244, 246, 247, and 252
[DFARS Case 2011-D056]
RIN 0750-AH63
Defense Federal Acquisition Regulation Supplement: Solicitation
Provisions and Contract Clauses for Acquisitions of Commercial Items
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to simplify prescriptions for provisions
and clauses that are applicable to the acquisition of commercial items
and to specify flowdown of clauses to commercial subcontracts.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before June 4, 2012, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2011-D056, using
any of the following methods:
[[Page 20599]]
[cir] Regulations.gov: https://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2011-D056''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2011-D056.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2011-D056'' on your attached document.
[cir] Email: dfars@osd.mil. Include DFARS Case 2011-D056 in the
subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Dr. Laura
Welsh, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Dr. Laura Welsh, telephone 571-372-
6091.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to support the use of
automated contract writing systems. The clause at DFARS 252.212-7001,
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders Applicable to Defense Acquisitions of Commercial
Items, requires the contracting officer to ``check a box'' to identify
the clauses that are applicable to each commercial item acquisition.
This requirement is not compatible with most automated contract writing
systems. Section 8002 of the Federal Acquisition Streamlining Act of
1994 (Pub. L. 103-355) requires that the regulations shall contain a
list of contract clauses to be included in contracts for the
acquisition of commercial end items. Each time a clause or clause
alternate is added, DoD must consider whether the clause or clause
alternate will be applicable to commercial items. The law does not
require that this list be in the form of a clause, requiring clause
dates for each applicable clause that must be revised every time a
clause on the list is modified.
Furthermore, clause flowdown to commercial subcontracts is
controlled by paragraph (c) of the clause 252.212-7001 for commercial
contracts under FAR part 12 and clause 252.244-7000, Subcontracts for
Commercial Items and Commercial Components (DoD Contracts). These lists
of clauses that require flowdown to commercial subcontracts likewise
require update every time a clause on the list is modified.
II. Discussion and Analysis
DoD proposes the following changes to facilitate the use of
automated contract writing systems and reduce the need for constant
update of clause dates on multiple lists.
Revise DFARS 212.301(f) to--
--Provide a single list of all fifty-eight provisions and clauses that
currently apply to DoD solicitations and contracts for the acquisition
of commercial items. Where any provision or clause is included to
implement statutes or executive orders that are applicable to defense
acquisitions of commercial items, the particular statute or Executive
order is identified following the location of the prescription for each
provision or clause. All provisions and clauses currently listed in
DFARS 212.301(f) that are applicable to DoD solicitations and contracts
for the acquisition of commercial items are retained in the revised
list.
--Add DFARS provision 252.203-7005, Representation Relating to
Compensation of Former DoD Officials. This provision's application to
the acquisition of commercial items was inadvertently omitted from case
2010-D020 when the final rule was published on November 18, 2011 (76 FR
71826).
--Add the two provisions currently contained in DFARS provision
252.212-7000, Offeror Representations and Certifications--Commericial
Items.
--Add one FAR clause and thirty-one DFARS clauses (inclusive of
alternates) currently contained in DFARS clause 252.212-7001, Contract
Terms and Conditions Required to Implement Statutes or Executive Orders
Applicable to Defense Acquisitions of Commercial Items.
--Add two DFARS provisions and two DFARS clauses in support of
operations in Iraq or Afghanistan: provision 252.225-7022, Trade
Agreements Certificate--Inclusion of Iraqi End Products; provision
252.225-7023, Preference for Products or Services from Iraq or
Afghanistan; clause 252.225-7024, Requirement for Products or Services
from Iraq or Afghanistan; and clause 252.225-7026, Acquisition
Restricted to Products or Services from Iraq or Afghanistan. These
provisions' and clauses' application to the acquisition of commercial
items in support of operations in Iraq or Afghanistan was inadvertently
omitted from case 2008-D002 when the final rule was published on April
8, 2010 (75 FR 18035).
--Add DFARS provision 252.225-7037, Evaluation of Offers for Air
Circuit Breakers. This provision's application to the acquisition of
commercial items was inadvertently omitted from case 2002-D009 when the
final rule was published in the Federal Register on March 31, 2003 (68
FR 15616), with an effective date of April 30, 2003. This provision is
the companion to DFARS clause 252.225-7038, Restriction on Acquisition
of Air Circuit Breakers, which is currently listed at paragraph (b)(17)
of DFARS clause 252.212-7001.
--Revise clause 252.244-7000, Subcontracts for Commercial Items, to
address the requirements regarding flow down of clauses to subcontracts
of commercial items currently contained in paragraph (c) of clause
252.212-7001.
--Add DFARS clause 252.247-7025, Reflagging or Repair Work. This
clause's application to the acquisition of commercial items was
inadvertently omitted from case 95-D712 for the commercial item
implementation of the Federal Acquisition Streamlining Act of 1994
(FASA) when the final rule was published in the Federal Register on
November 1, 2001 (66 FR 55151). All other clauses contained in DFARS
247.574 for ocean transportation by U.S.-flag vessels are listed as
applicable to the defense acquisition of commercial items. Time charter
acquisitions of vessels are commercial by their very nature. Further,
10 U.S.C. 2631 is not listed in DFARS 212.503(a) as a law not
applicable to commercial contracts.
--Add provision and clause alternates that are applicable to commercial
items that were previously inadvertently omitted from either DFARS
212.301(f) or DFARS clause 252.212-7001. Alternates were added as
applicable to: Clause 252.219-7003, Small Business Subcontracting Plan;
provision 252.225-7000, Buy American Act-Balance of Payments Program
Certificate; provision 252.225-7020, Trade Agreements Certificate;
provision 252.225-7035, Buy American Act--Free Trade Agreements--
Balance of Payments Program Certificate; clause 252.227-7013, Rights in
Technical Data--
[[Page 20600]]
Noncommercial Items; and clause 252.227-7015, Technical Data--
Commercial Items.
--Delete DFARS provision 252.212-7000, Offeror Representations and
Certifications--Commercial Items, and DFARS clause 252.212-7001,
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders Applicable to Defense Acquisitions of Commercial
Items. These deletions support the use of automated contract writing
systems. Rather than requiring the contracting officers to ``check the
applicable clauses,'' the automated contract writing systems can be
used to automatically select the applicable clauses, saving the DoD
time and scarce resources.
Revise the prescriptions for each of the fifty-eight
provisions and clauses, including alternates, in the revised list at
DFARS 212.301(f) to indicate that they are specifically used in
solicitations or contracts using FAR part 12 procedures for the
acquisition of commercial items. The phrase ``including solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items'' was used in lieu of a simpler phrase such as
``including commercial item solicitations and contracts'' as FAR
12.102(f) and (g) allow for the use of part 12 procedures for items
that do not meet the definition of a commercial item defined at FAR
2.101.
Make technical corrections to--
--The prescription at 232.908.
--Provide the location of prescriptions for provisions and clauses for
the following: 252.203-7000, 252.211-7003, and 252.227-7037.
--Provide the locations of definitions missing in 247.571 and to
provide the statutory citations missing in 247.572.
Revise DFARS clause 252.244-7000, Subcontracts for
Commercial Items and Commercial Components (DoD Contracts), to indicate
that the contractor is not required to flow down the terms of any DFARS
clause in subcontracts for commercial items unless so specified in the
particular clause.
Revise the last paragraph of the following clauses to
state that the terms should flow down to subcontracts for commercial
items: 252.211-7003; 252.225-7009; 252.225-7039; 252.227-7013; 252.227-
7015; 252.227-7037; 252.236-7013; 252.237-7010; 252.237-7019; 252.246-
7003; 252.247-7003; and 252.247-7023. The list of clauses requiring
flow down of clause terms to subcontracts for commercial items was
obtained from paragraph (c) of DFARS clause 252.212-7001 and the list
contained in the current DFARS clause 252.244-7000, with the addition
of clause 252.211-7003, which was previously inadvertently omitted from
both lists in case 2003-D081 when the final rule was published in the
Federal Register on April 22, 2005 (70 FR 20831). However, clause
252.247-7024 did not require revision as it already contained language
specifically requiring flow down to subcontracts for commercial items.
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 does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule aims to only change the appearance of how commercial
provisions and clauses are presented within commercial acquisitions and
there are no substantive changes. However, an initial regulatory
flexibility analysis has been performed and is summarized as follows.
The purpose of this case is to support the use of automated
contract writing systems. The clause at DFARS 252.212-7001 requires the
contracting officer to ``check a box'' to identify the clauses that are
applicable to each commercial item acquisition. Rather than requiring
the contracting officers to ``check the applicable clauses,'' this
proposed rule will allow automated contract writing systems to
automatically select the applicable clauses, saving DoD time and scarce
resources.
Potential offerors, including small businesses, may be affected by
this rule only to the extent of seeing an unfamiliar format for clauses
in commercial item acquisitions issued by any DoD contracting
activities that do not already currently deviate from the current DFARS
requirement to ``check a box.'' There were 273,042 new contracts,
agreements, and purchase orders awarded in Fiscal Year 2011 using FAR
part 12 procedures for the acquisition of commercial items, and 71,950
of these actions (26.35%) were awarded to small businesses. It is
unknown how many of these actions were awarded using a deviation from
DFARS clause 252.212-7001. Nothing substantive will change in
commercial acquisitions for potential offerors, and only the appearance
of how applicable clauses are presented will be changed. This rule may
result in potential offerors, including small businesses, expending
more time to become familiar with and to understand the new clause
format issued by any DoD contracting activities not presently operating
under the existing deviation. The burden caused by this rule is
expected to be minimal and will not be any greater on small businesses
than it is on large businesses.
This rule does not add any new information collection requirements.
The information collection burden required by DFARS provisions 252.225-
7022, Trade Agreements Certificate--Inclusion of Iraqi End Products,
and 252.225-7023, Preference for Products or Services from Iraq or
Afghanistan, is already covered and approved under OMB Control Number
0704-0229 entitled Foreign Acquisitions. These provisions are variants
of the other existing foreign acquisition reporting burdens already
used and covered for commercial acquisitions (excluding commercial
information technology).
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
No alternatives were identified that will accomplish the objectives
of the rule.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2011-D056), in
correspondence.
V. Paperwork Reduction Act
This rule does not contain any new information collection
requirements that require the approval of the Office of Management and
Budget (OMB) under the Paperwork Reduction Act (44 U.S.C chapter 35).
The commercial clauses
[[Page 20601]]
currently approved for use in commercial contracts, which may impose
any information collection burden on contractors or any subcontractors,
are already covered by an existing approved OMB clearance. The burdens
for all existing commercial clauses are not changed in any way by this
proposed rule. Two DFARS provisions, with an associated information
collection burden, are newly identified by this rule as being
applicable to acquisitions of commercial items: 252.225-7022, Trade
Agreements Certificate--Inclusion of Iraqi End Products; and 252.225-
7023, Preference for Products or Services from Iraq of Afghanistan. The
information collection burdens associated with these two DFARS
provisions are already fully covered and cleared under OMB Control
Number 0704-0229 entitled Foreign Acquisitions. These two provisions
are variants of the other existing foreign acquisition provisions with
reporting burdens already in use and covered for commercial
acquisitions (excluding commercial information technology).
List of Subjects in 48 CFR Parts 203, 204, 205, 209, 211, 212, 219,
225, 226, 227, 232, 237, 243, 244, 246, 247, and 252
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 203, 204, 205, 209, 211, 212, 219, 225,
226, 227, 232, 237, 243, 244, 246, 247, and 252 are proposed to be
amended as follows:
1. The authority citation for 48 CFR parts 203, 204, 205, 209, 211,
212, 219, 225, 226, 227, 232, 237, 243, 244, 246, 247, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
2. Section 203.171-4 is revised to read as follows:
203.171-4 Solicitation provision and contract clause.
(a) Use the clause at 252.203-7000, Requirements Relating to
Compensation of Former DoD Officials, in all solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items.
(b) Use the provision at 252.203-7005, Representation Relating to
Compensation of Former DoD Officials, in all solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, including solicitations for task and delivery orders.
3. Section 203.1004(a) is revised to read as follows:
203.1004 Contract clauses.
(a) Use the clause at 252.203-7003, Agency Office of the Inspector
General, in solicitations and contracts that include the FAR clause
52.203-13, Contractor Code of Business Ethics and Conduct, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items.
* * * * *
PART 204--ADMINISTRATIVE MATTERS
4. Section 204.7109(b) is revised to read as follows:
204.7109 Solicitation provision and contract clause.
* * * * *
(b) Use the provision at 252.204-7011, Alternative Line Item
Structure, in solicitations using FAR part 12 procedures for the
acquisition of commercial items or for initial provisioning spares.
PART 205--PUBLICIZING CONTRACT ACTIONS
5. Section 205.470 is revised to read as follows:
205.470 Contract clause.
Use the clause at 252.205-7000, Provision of Information to
Cooperative Agreement Holders, in solicitations and contracts expected
to exceed $1,000,000, including solicitations and contracts using FAR
part 12 procedures for the acquisition of commercial items. This clause
implements 10 U.S.C. 2416.
PART 209--CONTRACTOR QUALIFICATIONS
6. Section 209.104-70(a) is revised to read as follows:
209.104-70 Solicitation provisions.
(a) Use the provision at 252.209-7001, Disclosure of Ownership or
Control by the Government of a Terrorist Country, in all solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, expected to result in contracts of
$150,000 or more. Any disclosure that the government of a terrorist
country has a significant interest in an offeror or a subsidiary of an
offeror shall be forwarded through agency channels to the address at
209.104-1(g)(i)(C).
* * * * *
PART 211--DESCRIBING AGENCY NEEDS
7. Section 211.274-6(a)(1) is revised to read as follows:
211.274-6 Contract clauses.
(a)(1) Use the clause at 252.211-7003, Item Identification and
Valuation, in solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial items, that--
* * * * *
8. Section 211.275-3 is revised to read as follows:
211.275-3 Contract clause.
Use the clause at 252.211-7006, Passive Radio Frequency
Identification, in solicitations and contracts, including solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items, that will require shipment of items meeting the
criteria at 211.275-2, and complete paragraph (b)(1)(ii) of the clause
as appropriate.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
9. Section 212.301 is revised to read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) The following additional provisions and clauses apply to DoD
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items. If the offeror has completed any of
the following provisions listed in this paragraph electronically as
part of its annual representations and certifications at https://www.acquisition.gov, the contracting officer shall consider this
information instead of requiring the offeror to complete these
provisions for a particular solicitation.
(i) Use the FAR clause at 52.203-3, Gratuities, as prescribed in
FAR 3.202, to comply with 10 U.S.C. 2207.
(ii) Use the clause at 252.203-7000, Requirements Relating to
Compensation of Former DoD Officials, as prescribed in 203.171-4(a), to
comply with section 847 of Public Law 110-181.
(iii) Use the clause at 252.203-7003, Agency Office of the
Inspector General, as prescribed in 203.1004(a), to comply with section
6101 of Public Law 110-252 and 41 U.S.C. 3509.
(iv) Use the provision at 252.203-7005, Representation Relating to
[[Page 20602]]
Compensation of Former DoD Officials, as prescribed in 203.171-4(b).
(v) Use the provision at 252.204-7011, Alternative Line Item
Structure, as prescribed in 204.7109(b).
(vi) Use the clause at 252.205-7000, Provision of Information to
Cooperative Agreement Holders, as prescribed in 205.470, to comply with
10 U.S.C. 2416.
(vii) Use the provision at 252.209-7001, Disclosure of Ownership or
Control by the Government of a Terrorist Country, as prescribed in
209.104-70(a), to comply with 10 U.S.C 2327(b).
(viii) Use the clause at 252.211-7003, Item Identification and
Valuation, as prescribed in 211.274-6(a).
(ix) Use the provision at 252.211-7006, Passive Radio Frequency
Identification, as prescribed in 211.275-3.
(x) Use the clause at 252.219-7003, Small Business Subcontracting
Plan (DoD Contracts), as prescribed in 219.708(b)(1)(A)(1), to comply
with 15 U.S.C. 637. Use the clause with its Alternate I as prescribed
in 219.708(b)(1)(A)(2).
(xi) Use the clause at 252.219-7004, Small Business Subcontracting
Plan (Test Program), as prescribed in 219.708(b)(1)(B), to comply with
15 U.S.C. 637 note.
(xii) Use the provision at 252.225-7000, Buy American Act--Balance
of Payments Program Certificate, as prescribed in 225.1101(1)(i), to
comply with 41 U.S.C. chapter 83 and Executive Order 10582 of December
17, 1954, Prescribing Uniform Procedures for Certain Determinations
Under the Buy-American Act. Use the provision with its Alternate I as
prescribed in 225.1101(1)(ii).
(xiii) Use the clause at 252.225-7001, Buy American Act and Balance
of Payments Program, as prescribed in 225.1101(2)(i), to comply with 41
U.S.C. chapter 83 and Executive Order 10582 of December 17, 1954,
Prescribing Uniform Procedures for Certain Determinations Under the
Buy-American Act. Use the clause with its Alternate I as prescribed in
225.1101(2)(ii).
(xiv) Use the clause at 252.225-7008, Restriction on Acquisition of
Specialty Metals, as prescribed in 225.7003-5(a)(1), to comply with 10
U.S.C. 2533b.
(xv) Use the clause at 252.225-7009, Restriction on Acquisition of
Certain Articles Containing Specialty Metals, as prescribed in
225.7003-5(a)(2), to comply with 10 U.S.C. 2533b.
(xvi) Use the provision at 252.225-7010, Commercial Derivative
Military Article--Specialty Metals Compliance Certificate, as
prescribed in 225.7003-5(b), to comply with 10 U.S.C. 2533b.
(xvii) Use the clause at 252.225-7012, Preference for Certain
Domestic Commodities, as prescribed in 225.7002-3(a), to comply with 10
U.S.C. 2533a.
(xviii) Use the clause at 252.225-7015, Restriction on Acquisition
of Hand or Measuring Tools, as prescribed in 225.7002-3(b), to comply
with 10 U.S.C. 2533a.
(xix) Use the clause at 252.225-7016, Restriction on Acquisition of
Ball and Roller Bearings, as prescribed in 225.7009-5, to comply with
section 8065 of Public Law 107-117 and the same restriction in
subsequent DoD appropriations acts.
(xx) Use the clause at 252.225-7017, Photovoltaic Devices, as
prescribed in 225.7017-4(a), to comply with section 846 of Public Law
111-383.
(xxi) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, as prescribed in 225.7017-4(b), to comply with section 846
of Public Law 111-383.
(xxii) Use the provision at 252.225-7020, Trade Agreements
Certificate, as prescribed in 225.1101(5)(i), to comply with 19 U.S.C.
2501-2518 and 19 U.S.C. 3301 note. Use the provision with its Alternate
I as prescribed in 225.1101(5)(ii), to comply with sections 886 and 892
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L.
110-181).
(xxiii) Use the clause at 252.225-7021, Trade Agreements, as
prescribed in 225.1101(6)(i), to comply with 19 U.S.C. 2501-2518 and 19
U.S.C. 3301 note. Use the clause with its Alternate I as prescribed in
225.1101(6)(ii), to comply with sections 886 and 892 of the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). Use
the clause with its Alternate II as prescribed in 225.1101(6)(iii).
(xxiv) Use the provision at 252.225-7022, Trade Agreements
Certificate--Inclusion of Iraqi End Products, as prescribed in
225.1101(7), to comply with section 886 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
(xxv) Use the provision at 252.225-7023, Preference for Products or
Services from Iraq or Afghanistan, as prescribed in 225.7703-5(a), to
comply with section 886 of the National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110-181).
(xxvi) Use the clause at 252.225-7024, Requirement for Products or
Services from Iraq or Afghanistan, as prescribed in 225.7703-5(b), to
comply with sections 886 and 892 of the National Defense Authorization
Act for Fiscal Year 2008 (Pub. L. 110-181).
(xxvii) Use the clause at 252.225-7026, Acquisition Restricted to
Products or Services from Iraq or Afghanistan, as prescribed in
225.7703-5(c), to comply with sections 886 and 892 of the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
(xxviii) Use the clause at 252.225-7027, Restriction on Contingent
Fees for Foreign Military Sales, as prescribed in 225.7307(a), to
comply with 22 U.S.C. 2779.
(xxix) Use the clause at 252.225-7028, Exclusionary Policies and
Practices of Foreign Governments, as prescribed in 225.7307(b), to
comply with 22 U.S.C. 2755.
(xxx) Use the provision at 252.225-7031, Secondary Arab Boycott of
Israel, as prescribed in 225.7605, to comply with 10 U.S.C. 2410i.
(xxxi) Use the provision at 252.225-7035, Buy American Act--Free
Trade Agreements--Balance of Payments Program Certificate, as
prescribed in 225.1101(10)(i), to comply with 41 U.S.C. chapter 83 and
19 U.S.C. 3301 note. Use the provision with its Alternate I as
prescribed in 225.1101(10)(ii). Use the provision with its Alternate II
as prescribed in 225.1101(10)(iii). Use the provision with its
Alternate III as prescribed in 225.1101(10)(iv), to comply with
sections 886 and 892 of the National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110-181).
(xxxii) Use the clause at 252.225-7036, Buy American Act--Free
Trade Agreements--Balance of Payments Program, as prescribed in
225.1101(11)(i)(A), to comply with 41 U.S.C. chapter 83 and 19 U.S.C.
3301 note. Use the clause with its Alternate I as prescribed in
225.1101(11)(i)(B). Use the clause with its Alternate II as prescribed
in 225.1101(11)(i)(A), to comply with sections 886 and 892 of the
National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-
181). Use the clause with its Alternate III as prescribed in
225.1101(11)(i)(B), to comply with sections 886 and 892 of the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
(xxxiii) Use the provision at 252.225-7037, Evaluation of Offers
for Air Circuit Breakers, as prescribed in 225.7006-4(a), to comply
with 10 U.S.C. 2534(a)(3) as amended by section 814 of the National
Defense Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) and
section 4102(i) of the Federal Acquisition Streamlining Act of 1994
(Pub. L. 103-355).
(xxxiv) Use the clause at 252.225-7038, Restriction on Acquisition
of Air
[[Page 20603]]
Circuit Breakers, as prescribed in 225.7006-4(b), to comply with 10
U.S.C. 2534(a)(3) as amended by section 814 of the National Defense
Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) and section
4102(i) of the Federal Acquisition Streamlining Act of 1994 (Pub. L.
103-355).
(xxxv) Use the clause at 252.225-7039, Contractors Performing
Private Security Functions, as prescribed in 225.370-6, to comply with
section 862 of Public Law 110-181, as amended by section 853 of Public
Law 110-417 and sections 831 and 832 of Public Law 111-383.
(xxxvi) Use the clause at 252.225-7040, Contractor Personnel
Authorized to Accompany U.S. Armed Forces Deployed Outside the United
States, as prescribed in 225.7402-5(a).
(xxxvii) Use the clause at 252.225-7043, Antiterrorism/Force
Protection Policy for Defense Contractors Outside the United States, as
prescribed in 225.7403-2.
(xxxviii) Use the clause at 252.226-7001, Utilization of Indian
Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian
Small Business Concerns, as prescribed in 226.104, to comply with
section 8021 of Public Law 107-248 and similar sections in subsequent
DoD appropriations acts.
(xxxix) Use the clause at 252.227--7013, Rights in Technical Data-
Noncommercial Items, as prescribed in 227.7103-6(a). Use the clause
with its Alternate I as prescribed in 227.7103-6(b)(1). Use the clause
with its Alternate II as prescribed in 227.7103-6(b)(2), to comply with
10 U.S.C. 7317 and 17 U.S.C. 1301, et seq.
(xl) Use the clause at 252.227-7015, Technical Data--Commercial
Items, as prescribed in 227.7102-4(a)(1), to comply with 10 U.S.C.
2320. Use the clause with its Alternate I as prescribed in 227.7102-
4(a)(2), to comply with 10 U.S.C. 7317 and 17 U.S.C. 1301, et seq.
(xli) Use the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, as prescribed in part 227.
(xlii) Use the clause at 252.232-7003, Electronic Submission of
Payment Requests and Receiving Reports, as prescribed in 232.7004, to
comply with 10 U.S.C. 2227.
(xliii) Use the clause at 252.232-7009, Mandatory Payment by
Governmentwide Commercial Purchase Card, as prescribed in 232.1110.
(xliv) Use the clause at 252.232-7010, Levies on Contract Payments,
as prescribed in 232.7102.
(xlv) Use the clause at 252.232-7011, Payments in Support of
Emergencies and Contingency Operations, as prescribed in 232.908.
(xlvi) Use the clause at 252.237-7010, Prohibition on Interrogation
of Detainees by Contractor Personnel, as prescribed in 237.173-5, to
comply with section 1038 of Public Law 111-84.
(xlvii) Use the clause at 252.237-7019, Training for Contractor
Personnel Interacting with Detainees, as prescribed in 237.171-4, to
comply with section 1092 of Public Law 108-375.
(xlviii) Use the clause at 252.243-7002, Requests for Equitable
Adjustment, as prescribed in 243.205-71, to comply with 10 U.S.C. 2410.
(xlix) Use the clause at 252.244-7000, Subcontracts for Commercial
Items, as prescribed in 244.403.
(l) Use the clause at 252.246-7003, Notification of Potential
Safety Issues, as prescribed in 246.371(a).
(li) Use the clause at 252.246-7004, Safety of Facilities,
Infrastructure, and Equipment for Military Operations, as prescribed in
246.270-4, to comply with section 807 of Public Law 111-84.
(lii) Use the clause at 252.247-7003, Pass-Through of Motor Carrier
Fuel Surcharge Adjustment to the Cost Bearer, as prescribed in 247.207,
to comply with section 884 of Public Law 110-417.
(liii) Use the provision at 252.247-7022, Representation of Extent
of Transportation by Sea, as prescribed in 247.574(a).
(liv) Use the clause at 252.247-7023, Transportation of Supplies by
Sea, as prescribed in 247.574(b)(1), to comply with the Cargo
Preference Act of 1904 (10 U.S.C. 2631(a)). Use the clause with its
Alternate I as prescribed in 247.574(b)(2). Use the clause with its
Alternate II as prescribed in 247.574(b)(3). Use the clause with its
Alternate III as prescribed in 247.574(b)(4).
(lv) Use the clause at 252.247-7024, Notification of Transportation
of Supplies by Sea, as prescribed in 247.574(c).
(lvi) Use the clause 252.247-7025, Reflagging or Repair Work, as
prescribed in 247.574(d), to comply with 10 U.S.C. 2631(b).
(lvii) Use the provision at 252.247-7026, Evaluation Preference for
Use of Domestic Shipyards--Applicable to Acquisition of Carriage by
Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as
prescribed in 247.574(e), to comply with section 1017 of Public Law
109-364.
(lviii) Use the clause at 252.247-7027, Riding Gang Member
Requirements, as prescribed in 247.574(f), to comply with section 3504
of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L.
110-417).
PART 219--SMALL BUSINESS PROGRAMS
10. Section 219.708(b)(1) is revised to read as follows:
219.708 Contract clauses.
(b)(1)(A) Use the clause at 252.219-7003, Small Business
Subcontracting Plan (DoD Contracts)--
(1) In solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial items that contain the clause at FAR 52.219-9, Small
Business Subcontracting Plan.
(2) With its Alternate I in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, that use Alternate III of 52.219-9,
Small Business Subcontracting Plan.
(B) In solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial items, with contractors that have comprehensive
subcontracting plans approved under the test program described in
219.702, use the clause at 252.219-7004, Small Business Subcontracting
Plan (Test Program), instead of the clauses at 252.219-7003, Small
Business Subcontracting Plan (DoD Contracts), and FAR 52.219-9, Small
Business Subcontracting Plan. Include--
(1) FAR clause 52.219-9, Small Business Subcontracting Plan, and
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), in
the contract for purposes of the contractor flowing these clauses down
to subcontractors, except
(2) When the contract will not be reported in FPDS (see FAR
4.606(c)(5)), include FAR clause 52.219-9, Small Business
Subcontracting Plan, with its Alternate III and 252.219-7003, Small
Business Subcontracting Plan (DoD Contracts), with its Alternate I in
the contract for purposes of the contractor flowing these clauses down
to subcontractors.
* * * * *
PART 225--FOREIGN ACQUISITION
11. In section 225.370-6, the introductory text is revised to read
as follows:
225.370-6 Contract clause.
Use the clause at 252.225-7039, Contractors Performing Private
Security Functions, in all solicitations and contracts, including
solicitations and
[[Page 20604]]
contracts using FAR part 12 procedures for the acquisition of
commercial items, to be performed in areas of--
* * * * *
12. Section 225.1101 is amended by--
a. Revising paragraph (1);
b. Revising the introductory text of paragraph (2)(i); and
c. Revising paragraphs (2)(ii); (5); (6)(i), (ii), (iii); (7);
(10); and (11)(i).
The revisions read as follows:
225.1101 Acquisition of supplies.
(1)(i) Use the provision at 252.225-7000, Buy American Act--Balance
of Payments Program Certificate, instead of the provision at FAR
52.225-2, Buy American Act Certificate. Use the provision in any
solicitation, including solicitations using FAR part 12 procedures for
the acquisition of commercial items, that includes the clause at
252.225-7001, Buy American Act and Balance of Payments Program.
(ii) Use the provision with its Alternate I in solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, when the acquisition is of end
products listed in 225.401-70 in support of operations in Afghanistan.
(2)(i) Use the clause at 252.225-7001, Buy American Act and Balance
of Payments Program, instead of the clause at FAR 52.225-1, Buy
American Act--Supplies, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, unless--
* * * * *
(ii) Use the clause with its Alternate I in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, when the
acquisition is of end products listed in 225.401-70 in support of
operations in Afghanistan
* * * * *
(5)(i) Except as provided in paragraph (7) of this section, use the
provision at 252.225-7020, Trade Agreements Certificate, instead of the
provision at FAR 52.225-6, Trade Agreements Certificate, in
solicitations, including solicitations using FAR part 12 procedures for
the acquisition of commercial items, that include the clause at
252.225-7021, Trade Agreements.
(ii) Use the provision with its Alternate I in solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, when the acquisition is of end
products in support of operations in Afghanistan.
(6)(i) Use the clause at 252.225-7021, Trade Agreements, instead of
the clause at FAR 52.225-5, Trade Agreements, in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, if the World Trade
Organization Government Procurement Agreement applies.
(ii) Use the clause with its Alternate I in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, that include the
clause at 252.225-7024, Requirement for Products or Services from Iraq
or Afghanistan, unless the clause at 252.225-7024 has been modified to
provide a preference only for the products of Afghanistan.
(iii) Use the clause with its Alternate II in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, when the
acquisition is of end products in support of operations in Afghanistan
and Alternate I is not applicable.
* * * * *
(7) Use the provision at 252.225-7022, Trade Agreements
Certificate--Inclusion of Iraqi End Products, instead of the provision
at FAR 52.225-6, Trade Agreements Certificate, in solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, that include the clause at 252.225-
7021, Trade Agreements, with its Alternate I.
* * * * *
(10)(i) Use the provision at 252.225-7035, Buy American Act--Free
Trade Agreements--Balance of Payments Program Certificate, instead of
the provision at FAR 52.225-4, Buy American Act--Free Trade
Agreements--Israeli Trade Act Certificate, in solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, that include the clause at 252.225-7036, Buy American
Act--Free Trade Agreements--Balance of Payments Program.
(ii) Use the provision with its Alternate I in solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, when the clause at 252.225-7036 is
used with its Alternate I.
(iii) Use the provision with its Alternate II in solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, when the clause at 252.225-7036 is
used with its Alternate II.
(iv) Use the provision with its Alternate III in solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, when the clause at 252.225-7036 is
used with its Alternate III.
(11)(i) Except as provided in paragraph (11)(ii) of this section,
use the clause at 252.225-7036, Buy American Act--Free Trade
Agreements--Balance of Payments Program, instead of the clause at FAR
52.225-3, Buy American Act--Free Trade Agreements--Israeli Trade Act,
in solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
for the items listed at 225.401-70, when the estimated value equals or
exceeds $25,000, but is less than $202,000, and a Free Trade Agreement
applies to the acquisition.
(A) Use the basic clause in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, when the estimated value equals or
exceeds $77,494, except if the acquisition is of end products in
support of operations in Afghanistan, use with its Alternate II.
(B) Use the clause with its Alternate I in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, when the estimated
value equals or exceeds $25,000 but is less than $77,494, except if the
acquisition is of end products in support of operations in Afghanistan,
use with its Alternate III.
* * * * *
13. Section 225.7002-3 is revised to read as follows:
225.7002-3 Contract clauses.
Unless an exception applies--
(a) Use the clause at 252.225-7012, Preference for Certain Domestic
Commodities, in solicitations and contracts, including solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items, exceeding the simplified acquisition threshold.
(b) Use the clause at 252.225-7015, Restriction on Acquisition of
Hand or Measuring Tools, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, exceeding the simplified acquisition
threshold that require delivery of hand or measuring tools.
14. In section 225.7003-5, the introductory text of paragraphs
(a)(1), (a)(2), and (b) are revised to read as follows:
[[Page 20605]]
225.7003-5 Solicitation provision and contract clauses.
(a) * * *
(1) Use the clause at 252.225-7008, Restriction on Acquisition of
Specialty Metals, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, that--
* * * * *
(2) Use the clause at 252.225-7009, Restriction on Acquisition of
Certain Articles Containing Specialty Metals, in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, that--
* * * * *
(b) Use the provision at 252.225-7010, Commercial Derivative
Military Article--Specialty Metals Compliance Certificate, in
solicitations, including solicitations using FAR part 12 procedures for
the acquisition of commercial items--
* * * * *
15. In section 225.7006-4, the introductory text of paragraphs (a)
and (b) are revised to read as follows:
225.7006-4 Solicitation provision and contract clause.
(a) Use the provision at 252.225-7037, Evaluation of Offers for Air
Circuit Breakers, in solicitations, including solicitations using FAR
part 12 procedures for the acquisition of commercial items, requiring
air circuit breakers for naval vessels unless--
* * * * *
(b) Use the clause at 252.225-7038, Restriction on Acquisition of
Air Circuit Breakers, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, requiring air circuit breakers for
naval vessels unless--
* * * * *
16. In section 225.7009-5, the introductory text is revised to read
as follows:
225.7009-5 Contract clause.
Use the clause at 252.225-7016, Restriction on Acquisition of Ball
and Roller Bearings, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, unless--
* * * * *
17. Section 225.7017-4 is amended by--
a. Revising the introductory text of paragraph (a)(1); and
b. Revising paragraphs (a)(2) and (b).
The revisions read as follows:
225.7017-4 Solicitation provisions and contract clauses.
(a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in
solicitations, including solicitations using FAR part 12 procedures for
the acquisition of commercial items, for a contract that--
* * * * *
(2) Use the clause in the resultant contract, including contracts
using FAR part 12 procedures for the acquisition of commercial items,
if it is a covered contract (i.e., will result in DoD ownership of
photovoltaic devices, by means other than DoD purchase as end
products).
(b) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, in solicitations, including solicitations using FAR part
12 procedures for the acquisition of commercial items, containing the
clause at 252.225-7017.
18. Section 225.7307 is revised to read as follows:
225.7307 Contract clauses.
(a) Use the clause at 252.225-7027, Restriction on Contingent Fees
for Foreign Military Sales, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, for FMS. Insert in paragraph (b)(1) of
the clause the name(s) of any foreign country customer(s) listed in
225.7303-4(b).
(b) Use the clause at 252.225-7028, Exclusionary Policies and
Practices of Foreign Governments, in solicitations and contracts,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial items, for the purchase of supplies and
services for international military education training and FMS.
19. In section 225.7402-5(a), the introductory text is revised to
read as follows:
225.7402-5 Contract clauses.
(a) Use the clause at 252.225-7040, Contractor Personnel Authorized
to Accompany U.S. Armed Forces Deployed Outside the United States,
instead of the clause at FAR 52.225-19, Contractor Personnel in a
Designated Operational Area or Supporting a Diplomatic or Consular
Mission Outside the United States, in solicitations and contracts,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial items, that authorize contractor
personnel to accompany U.S. Armed Forces deployed outside the United
States in--
* * * * *
20. In section 225.7403-2, the introductory text is revised to read
as follows:
225.7403-2 Contract clause.
Use the clause at 252.225-7043, Antiterrorism/Force Protection
Policy for Defense Contractors Outside the United States, in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
that require performance or travel outside the United States, except
for contracts with--
* * * * *
21. Section 225.7605 is revised to read as follows:
225.7605 Solicitation provision.
Unless an exception applies or a waiver has been granted in
accordance with 225.7604, use the provision at 252.225-7031, Secondary
Arab Boycott of Israel, in all solicitations, including solicitations
using FAR part 12 procedures for the acquisition of commercial items.
22. Section 225.7703-5 is amended by--
a. Revising the introductory text of paragraph (a);
b. Revising paragraph (b); and
c. Revising the introductory text of paragraph (c)(1).
The revisions read as follows:
225.7703-5 Solicitation provisions and contract clauses.
(a) Use the provision at 252.225-7023, Preference for Products or
Services from Iraq or Afghanistan, in solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, that provide a preference for products or services
from Iraq or Afghanistan in accordance with 225.7703-1(a)(1). The
contracting officer--
* * * * *
(b) Use the clause at 252.225-7024, Requirement for Products or
Services from Iraq or Afghanistan, in solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, that include the provision at 252.225-7023,
Preference for Products or Services from Iraq or Afghanistan, and in
the resulting contract. If the provision at 252.225-7023 has been
modified to provide a preference exclusively for Iraq or exclusively
for Afghanistan, in accordance with paragraph (a)(1) of this
subsection, the clause at 252.225-7024 shall be modified accordingly.
(c)(1) Use the clause at 252.225-7026, Acquisition Restricted to
Products or Services from Iraq or Afghanistan, in solicitations and
contracts, including solicitations and contracts using FAR
[[Page 20606]]
part 12 procedures for the acquisition of commercial items, that--
* * * * *
PART 226--OTHER SOCIOECONOMIC PROGRAMS
23. Section 226.104 is revised to read as follows:
226.104 Contract clause.
Use the clause at 252.226-7001, Utilization of Indian
Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian
Small Business Concerns, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, for supplies or services exceeding
$500,000 in value.
Subpart 227.71--Rights in Technical Data
24. In section 227.7102-4, paragraphs (a) and (c) are revised to
read as follows:
227.7102-4 Contract clauses.
(a)(1) Except as provided in paragraph (b) of this subsection, use
the clause at 252.227-7015, Technical Data-Commercial Items, in all
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
when the contractor will be required to deliver technical data
pertaining to commercial items, components, or processes.
(2) Use the clause at 252.227-7015 with its Alternate I in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
for the development or delivery of a vessel design or any useful
article embodying a vessel design.
* * * * *
(c) Use the clause at 252.227-7037, Validation of Restrictive
Markings on Technical Data, in all solicitations and contracts using
FAR part 12 procedures for the acquisition of commercial items that
include the clause at 252.227-7015 or the clause at 252.227-7013.
25. Section 227.7103-6 is amended by--
a. Revising paragraph (a);
b. Revising the introductory text of paragraph (b)(1); and
c. Revising paragraph (b)(2).
The revisions read as follows:
227.7103-6 Contract clauses.
(a) Use the clause at 252.227-7013, Rights in Technical Data-
Noncommercial Items, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, when the successful offeror(s) will be
required to deliver to the Government technical data pertaining to
noncommercial items, or pertaining to commercial items for which the
Government will have paid for any portion of the development costs (in
which case the clause at 252.227-7013 will govern the technical data
pertaining to any portion of a commercial item that was developed in
any part at Government expense, and the clause at 252.227-7015 will
govern the technical data pertaining to any portion of a commercial
item that was developed exclusively at private expense). Do not use the
clause when the only deliverable items are computer software or
computer software documentation (see 227.72), commercial items
developed exclusively at private expense (see 227.7102-4), existing
works (see 227.7105), special works (see 227.7106), or when contracting
under the Small Business Innovation Research Program (see 227.7104).
Except as provided in 227.7107-2, do not use the clause in architect-
engineer and construction contracts.
(b)(1) Use the clause at 252.227-7013 with its Alternate I in
research solicitations and contracts, including research solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items, when the contracting officer determines, in
consultation with counsel, that public dissemination by the contractor
would be--
* * * * *
(2) Use the clause at 252.227-7013 with its Alternate II in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
for the development or delivery of a vessel design or any useful
article embodying a vessel design.
* * * * *
PART 232--CONTRACT FINANCING
26. Section 232.908 is revised to read as follows:
232.908 Contract clauses.
Use the clause at 252.232-7011, Payments in Support of Emergencies
and Contingency Operations, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, in addition to either the approved
clause prescribed in FAR 32.908 or paragraph (i)(2) of 52.212-4 in
acquisitions that meet the applicability criteria at 232.901(1).
27. In section 232.1110, the introductory text is revised to read
as follows:
232.1110 Solicitation provision and contract clauses.
Use the clause at 252.232-7009, Mandatory Payment by Governmentwide
Commercial Purchase Card, in solicitations, contracts, and agreements,
including solicitations, contracts, and agreements using FAR part 12
procedures for the acquisition of commercial items, when--
* * * * *
28. Section 232.7004 is revised to read as follows:
232.7004 Contract clause.
Except as provided in 232.7002(a), use the clause at 252.232-7003,
Electronic Submission of Payment Requests and Receiving Reports, in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items.
29. Section 232.7102 is revised to read as follows:
232.7102 Contract clause.
Use the clause at 252.232-7010, Levies on Contract Payments, in all
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
other than those for micropurchases.
PART 237--SERVICE CONTRACTING
30. In section 237.171-4, the introductory text is revised to read
as follows:
237.171-4 Contract clause.
Use the clause at 252.237-7019, Training for Contractor Personnel
Interacting with Detainees, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, for the acquisition of services if--
* * * * *
31. Section 237.173-5 is revised to read as follows:
237.173-5 Contract clause.
Insert the clause at 252.237-7010, Prohibition on Interrogation of
Detainees by Contractor Personnel, in solicitations and contracts,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial items, for the provision of services.
[[Page 20607]]
PART 243--CONTRACT MODIFICATIONS
32. Section 243.205-71 is revised to read as follows:
243.205-71 Requests for equitable adjustment.
Use the clause at 252.243-7002, Requests for Equitable Adjustment,
in solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
estimated to exceed the simplified acquisition threshold.
PART 244--SUBCONTRACTING POLICIES AND PROCEDURES
33. Section 244.403 is revised to read as follows:
244.403 Contract clause.
Use the clause at 252.244-7000, Subcontracts for Commercial Items,
in solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
that contain any of the following clauses:
(1) 252.211-7003, Item Identification and Valuation.
(2) 252.225-7009, Restriction on Acquisition of Certain Articles
Containing Specialty Metals.
(3) 252.225-7039, Contractors Performing Private Security
Functions.
(4) 252.227-7013, Rights in Technical Data--Noncommercial Items.
(5) 252.227-7015, Technical Data-Commercial Items.
(6) 252.227-7037, Validation of Restrictive Markings on Technical
Data.
(7) 252.236-7013, Requirement for Competition Opportunity for
American Steel Producers, Fabricators, and Manufacturers.
(8) 252.237-7010, Prohibition on Interrogation of Detainees by
Contractor Personnel.
(9) 252.237-7019, Training for Contractor Personnel Interacting
with Detainees.
(10) 252.246-7003, Notification of Potential Safety Issues.
(11) 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge
Adjustment to the Cost Bearer.
(12) 252.247-7023, Transportation of Supplies by Sea.
(13) 252.247-7024, Notification of Transportation of Supplies by
Sea.
PART 246--QUALITY ASSURANCE
34. Section 246.270-4 is revised to read as follows:
246.270-4 Contract clause.
Use the clause at 252.246-7004, Safety of Facilities,
Infrastructure, and Equipment for Military Operations, in solicitations
and contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, for the
construction, installation, repair, maintenance, or operation of
facilities, infrastructure, or for equipment configured for occupancy,
planned for use by DoD military or civilian personnel during military
operations.
35. In section 246.371(a), the introductory text is revised to read
as follows:
246.371 Notification of potential safety issues.
(a) Use the clause at 252.246-7003, Notification of Potential
Safety Issues, in solicitations and contracts, including solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items, for the acquisition of--
* * * * *
PART 247--TRANSPORTATION
36. Section 247.207 is revised to read as follows:
247.207 Solicitation provisions, contract clauses, and special
requirements.
Use the clause at 252.247-7003, Pass-Through of Motor Carrier Fuel
Surcharge Adjustment to the Cost Bearer, in solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, for carriage in
which a motor carrier, broker, or freight forwarder will provide or
arrange truck transportation services that provide for a fuel-related
adjustment.
37. Section 247.571 is revised to read as follows:
247.571 Definitions.
(a) ``Components,'' ``foreign flag vessel,'' ``ocean
transportation,'' ``supplies,'' and ``U.S.-flag vessel,'' as used in
this subpart, have the meaning given in the clause at 252.247-7023,
Transportation of Supplies by Sea.
(b) ``Reflagging or repair work,'' as used in this subpart, has the
meaning given in the clause at 252.247-7025, Reflagging or Repair Work.
(c) ``Covered vessel,'' ``foreign shipyard,'' ``overhaul, repair,
and maintenance work,'' ``shipyard,'' and ``U.S. shipyard,'' as used in
this subpart, have the meaning given in the provision at 252.247-7026,
Evaluation Preference for Use of Domestic Shipyards--Applicable to
Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or
Noncontiguous Trade.
38. Section 247.572 is amended by--
a. Revising the introductory text of paragraph (a); and
b. Adding introductory text to paragraph (c).
The revisions read as follows:
247.572 Policy.
(a) In accordance with 10 U.S.C. 2631(a), DoD contractors must
transport supplies, as defined in the clause at 252.247-7023,
Transportation of Supplies by Sea, exclusively on U.S.-flag vessels
unless--
* * * * *
(c) In accordance with 10 U.S.C. 2631(b)--
* * * * *
39. Section 247.574 is amended by--
a. Revising the introductory text of paragraph (a); and
b. Revising paragraphs (b)(1), (c), (d), (e), and (f).
The revisions read as follows:
247.574 Solicitation provisions and contract clauses.
(a) Use the provision at 252.247-7022, Representation of Extent of
Transportation by Sea, in all solicitations, including solicitations
using FAR part 12 procedures for the acquisition of commercial items,
except--
* * * * *
(b)(1) Use the clause at 252.247-7023, Transportation of Supplies
by Sea, in all solicitations and resultant contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, except those for direct purchase of
ocean transportation services.
* * * * *
(c) Use the clause at 252.247-7024, Notification of Transportation
of Supplies by Sea, in all contracts, including contracts using FAR
part 12 procedures for the acquisition of commercial items, for which
the offeror made a negative response to the inquiry in the provision at
252.247-7022, Representation of Extent of Transportation by Sea.
(d) Use the clause at 252.247-7025, Reflagging or Repair Work, in
all time charter solicitations and contracts, including time charter
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, for the use of a vessel for the
transportation of supplies, unless a waiver has been granted in
accordance with 247.572(c)(2).
(e) Use the provision at 252.247-7026, Evaluation Preference for
Use of Domestic Shipyards-Applicable to Acquisition of Carriage by
Vessel for DoD Cargo in the Coastwise or
[[Page 20608]]
Noncontiguous Trade, in solicitations, including solicitations using
FAR part 12 procedures for the acquisition of commercial items, that
require a covered vessel for carriage of cargo for DoD. See 247.573-3
for reporting of the information received from offerors in response to
the provision. See 247.573-2(c)(3) for the required evaluation
criterion.
(f) Use the clause at 252.247-7027, Riding Gang Member
Requirements, in solicitations and contracts, including solicitations
and contracts using FAR part 12 procedures for the acquisition of
commercial items, for the charter of, or contract for carriage of cargo
by, a U.S.-flag vessel documented under chapter 121 of title 46 U.S.C.
Follow the procedures at PGI 247.574.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.203-7000 [Amended]
40. Section 252.203-7000 is amended by--
a. Removing from the introductory paragraph ``201.171-4'' and
adding ``201.171-4(a)'' in its place; and
b. Removing from the clause heading ``(JUN 2011)'' and adding
``(DATE)'' in its place.
41. Section 252.211-7003 is amended by--
a. Removing from the clause heading ``(JUN 2011)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (g) to read as follows:
252.211-7003 Item Identification and Valuation.
* * * * *
(g) Subcontracts. If the Contractor acquires by subcontract, any
item(s) for which unique item identification is required in accordance
with paragraph (c)(1) of this clause, the Contractor shall include this
clause, including this paragraph (g), in the applicable subcontract(s),
including subcontracts for commercial items.
* * * * *
252.212-7000 [Removed]
42. Section 252.212-7000 is removed.
252.212-7001 [Removed]
43. Section 252.212-7001 is removed.
44. Section 252.225-7009 is amended by--
a. Removing from the clause heading ``(JAN 2011)'' and adding
``(DATE)'' in its place; and
b. Revising the introductory text of paragraph (e) to read as
follows:
252.225-7009 Restriction on Acquisition of Certain Articles
Containing Specialty Metals.
* * * * *
(e) Subcontracts. The Contractor shall insert the substance of this
clause in subcontracts, including subcontracts for commercial items,
for items containing specialty metals, to the extent necessary to
ensure compliance of the end products that the Contractor will deliver
to the Government. When inserting the substance of this clause in
subcontracts, the Contractor shall--
* * * * *
45. Section 252.225-7039 is amended by--
a. Removing from the clause heading ``(AUG 2011)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (e) to read as follows:
252.225-7039 Contractors Performing Private Security Functions.
* * * * *
(e) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (e), in all subcontracts,
including subcontracts for commercial items, that will be performed in
areas of contingency operations, complex contingency operations, or
other military operations or exercises designated by the Combatant
Commander.
* * * * *
46. Section 252.227-7013 is amended by--
a. Removing from the clause heading ``(FEB 2012)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (k)(2) to read as follows:
252.227-7013 Rights in Technical Data-Noncommercial Items.
* * * * *
(k) * * *
(2) Whenever any technical data for noncommercial items, or for
commercial items developed in any part at Government expense, is to be
obtained from a subcontractor or supplier for delivery to the
Government under this contract, the Contractor shall use this same
clause in the subcontract or other contractual instrument, including
subcontracts or other contractual instruments for commercial items, and
require its subcontractors or suppliers to do so, without alteration,
except to identify the parties. This clause will govern the technical
data pertaining to noncommercial items, or to any portion of a
commercial item that was developed in any part at Government expense,
and the clause at 252.227-7015 will govern the technical data
pertaining to any portion of a commercial item that was developed
exclusively at private expense. No other clause shall be used to
enlarge or diminish the Government's, the Contractor's, or a higher-
tier subcontractor's or supplier's rights in a subcontractor's or
supplier's technical data.
* * * * *
47. Section 252.227-7015 is amended by--
a. Removing from the clause heading ``(DEC 2011)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (e)(2) to read as follows:
252.227-7015 Technical Data-Commercial Items.
* * * * *
(e) * * *
(2) Whenever any technical data related to commercial items
developed in any part at private expense will be obtained from a
subcontractor or supplier for delivery to the Government under this
contract, the Contractor shall use this same clause in the subcontract
or other contractual instrument, including subcontracts and other
contractual instruments for commercial items, and require its
subcontractors or suppliers to do so, without alteration, except to
identify the parties. This clause will govern the technical data
pertaining to any portion of a commercial item that was developed
exclusively at private expense, and the clause at 252.227-7013 will
govern the technical data pertaining to any portion of a commercial
item that was developed in any part at Government expense.
* * * * *
48. Section 252.227-7037 is amended by--
a. Removing from the introductory paragraph ``227.7102-3(c)'' and
adding ``227.7102-4(c)'' in its place;
b. Removing from the clause heading ``(SEP 2011)'' and adding
``(DATE)'' in its place; and
c. Revising paragraph (l) to read as follows:
252.227-7037 Validation of Restrictive Markings on Technical Data.
* * * * *
(l) Flowdown. The Contractor or subcontractor agrees to insert this
clause in contractual instruments, including subcontracts and other
contractual instruments for commercial items, with its subcontractors
or suppliers at any tier requiring the delivery of technical data.
* * * * *
49. Section 252.236-7013 is amended by--
[[Page 20609]]
a. Removing from the clause heading ``(JAN 2009)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (c) to read as follows:
252.236-7013 Requirement for Competition Opportunity for American
Steel Producers, Fabricators, and Manufacturers.
* * * * *
(c) The Contractor shall insert the substance of this clause,
including this paragraph (c), in any subcontract that involves the
acquisition of steel as a construction material, including subcontracts
for the acquisition of commercial items.
* * * * *
50. Section 252.237-7010 is amended by--
a. Removing from the clause heading ``(NOV 2010)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (c) to read as follows:
252.237-7010 Prohibition on Interrogation of Detainees by Contractor
Personnel.
* * * * *
(c) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (c), in all subcontracts,
including subcontracts for commercial items, that may require
subcontractor personnel to interact with detainees in the course of
their duties.
* * * * *
51. Section 252.237-7019 is amended by--
a. Removing from the clause heading ``(SEP 2006)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (c) to read as follows:
252.237-7019 Training for Contractor Personnel Interacting with
Detainees.
* * * * *
(c) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (c), in all subcontracts,
including subcontracts for commercial items, that may require
subcontractor personnel to interact with detainees in the course of
their duties.
* * * * *
52. Section 252.244-7000 is revised to read as follows:
252.244-7000 Subcontracts for Commercial Items.
As prescribed in 244.403, use the following clause:
SUBCONTRACTS FOR COMMERCIAL ITEMS (DATE)
(a) The Contractor is not required to flow down the terms of any
Defense Federal Acquisition Regulation Supplement clause in
subcontracts for commercial items at any tier under this contract
unless so specified in the particular clause.
(b) While not required, the Contractor may flow down to
subcontracts for commercial items a minimal number of additional
clauses necessary to satisfy its contractual obligation.
(c) The Contractor shall include the terms of this clause,
including this paragraph (c), in subcontracts awarded at any tier
under this contract, including subcontracts for the acquisition of
commercial items.
* * * * *
53. Section 252.246-7003 is amended by--
a. Removing from the clause heading ``(JAN 2007)'' and adding
``(DATE)'' in its place; and
b. Revising the introductory text of paragraph (f)(2) to read as
follows:
252.246-7003 Notification of Potential Safety Issues.
* * * * *
(f) * * *
(2) For those subcontracts, including subcontracts for commercial
items, described in paragraph (f)(1) of this clause, the Contractor
shall require the subcontractor to provide the notification required by
paragraph (c) of this clause to--
* * * * *
54. Section 252.247-7003 is amended by--
a. Removing from the clause heading ``(SEP 2010)'' and adding
``(DATE)'' in its place; and
b. Revising paragraph (c) to read as follows:
252.247-7003 Pass-Through of Motor Carrier Fuel Surcharge Adjustment
to the Cost Bearer.
* * * * *
(c) The Contractor shall insert the substance of this clause,
including this paragraph (c), in all subcontracts, including
subcontracts for commercial items, with motor carriers, brokers, or
freight forwarders.
* * * * *
55. Section 252.247-7023 is amended by--
a. Removing from the clause heading ``(May 2002)'' and adding
``(DATE)'' in its place;
b. Revising the introductory text of paragraph (h); and
c. Removing from paragraphs (h)(1) and (h)(2) ``Part 2'' and adding
``part 2'' in both places.
The revision reads as follows:
252.247-7023 Transportation of Supplies by Sea.
* * * * *
(h) In the award of subcontracts, for the types of supplies
described in paragraph (b)(2) of this clause, including subcontracts
for commercial items, the Contractor shall flow down the requirements
of this clause as follows:
* * * * *
[FR Doc. 2012-8053 Filed 4-4-12; 8:45 am]
BILLING CODE 5001-06-P
