Defense Federal Acquisition Regulation Supplement: Solicitation Provisions and Contract Clauses for Acquisition of Commercial Items (DFARS Case 2011-D056), 37980-37991 [2013-15030]

Download as PDF 37980 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations Community No. State and location Holland, Town of, Hampden County ..... 250141 Holyoke, City of, Hampden County ....... 250142 Longmeadow, Town of, Hampden County. Ludlow, Town of, Hampden County ...... 250143 Monson, Town of, Hampden County .... 250145 Palmer, Town of, Hampden County ...... 250147 Russell, Town of, Hampden County ..... 250148 Southwick, Town of, Hampden County 250149 Springfield, City of, Hampden County ... 250150 Wales, Town of, Hampden County ....... 250152 West Springfield, Town of, Hampden County. Westfield, City of, Hampden County ..... 250155 250153 Wilbraham, Town of, Hampden County 250154 250144 Region V Minnesota: Redwood County, Unincorporated Areas Redwood Falls, City of, Redwood County. Sanborn, City of, Redwood County ....... 270644 270393 270394 Seaforth, City of, Redwood County ....... 270602 Date certain Federal assistance no longer available in SFHAs Effective date authorization/cancellation of sale of flood insurance in community Current effective map date July 18, 1975, Emerg; July 5, 1984, Reg; July 16, 2013, Susp. May 20, 1974, Emerg; August 15, 1979, Reg; July 16, 2013, Susp. August 8, 1975, Emerg; September 1, 1978, Reg; July 16, 2013, Susp. October 17, 1974, Emerg; May 19, 1981, Reg; July 16, 2013, Susp. May 1, 1975, Emerg; June 1, 1981, Reg; July 16, 2013, Susp. June 20, 1975, Emerg; November 4, 1981, Reg; July 16, 2013, Susp. August 8, 1975, Emerg; December 15, 1990, Reg; July 16, 2013, Susp. December 29, 1975, Emerg; July 16, 1984, Reg; July 16, 2013, Susp. February 9, 1973, Emerg; February 1, 1980, Reg; July 16, 2013, Susp. August 11, 1975, Emerg; July 2, 1981, Reg; July 16, 2013, Susp. December 30, 1971, Emerg; September 30, 1977, Reg; July 16, 2013, Susp. May 10, 1973, Emerg; May 1, 1978, Reg; July 16, 2013, Susp. August 21, 1975, Emerg; March 1, 1979, Reg; July 16, 2013, Susp. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. ......do ............... Do. May 23, 1974, Emerg; December 4, 1985, Reg; July 16, 2013, Susp. May 13, 1975, Emerg; June 22, 1984, Reg; July 16, 2013, Susp. July 22, 1975, Emerg; July 3, 1985, Reg; July 16, 2013, Susp. N/A, Emerg; February 9, 2011, Reg; July 16, 2013, Susp.. * -do- = Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension. Dated: June 7, 2013. David L. Miller, Associate Administrator, Federal Insurance and Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. 2013–15167 Filed 6–24–13; 8:45 am] BILLING CODE 9110–12–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 203, 204, 205, 209, 211, 212, 215, 216, 219, 223, 225, 226, 227, 229, 232, 237, 243, 244, 246, 247, and 252 Defense Federal Acquisition Regulation Supplement: Solicitation Provisions and Contract Clauses for Acquisition of Commercial Items (DFARS Case 2011–D056) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. tkelley on DSK3SPTVN1PROD with RULES AGENCY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to simplify prescriptions for provisions and clauses that are SUMMARY: 16:29 Jun 24, 2013 Jkt 229001 PO 00000 Frm 00054 Fmt 4700 DATES: Effective Date: June 25, 2013. FOR FURTHER INFORMATION CONTACT: Amy Williams, Telephone 571–372– 6106. SUPPLEMENTARY INFORMATION: RIN 0750–AH63 VerDate Mar<15>2010 applicable to the acquisition of commercial items and to specify flowdown of clauses to commercial subcontracts. Sfmt 4700 I. Background DoD published a proposed rule at 77 FR 20601 on April 5, 2012, revising the Defense Federal Acquisition Regulation Supplement (DFARS) 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. 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 E:\FR\FM\25JNR1.SGM 25JNR1 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations 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, which requires revision 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 for contracts for noncommercial items. 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 Four respondents submitted comments on the proposed rule. The following is a discussion of the comments and the changes made to the rule as a result of those comments. A. Summary of significant changes from the proposed rule DoD has amended the final rule by adding a statement after the prescriptions for the provisions covered under DFARS 252.204–7007, Alternate A, Annual Representations and Certifications, that the individual provisions therein should not be included separately if the clause at FAR 52.204–7 is included in the solicitation (see section II.B.3. of this preamble). DoD did not make any other significant changes from the proposed rule. B. Analysis of public comments tkelley on DSK3SPTVN1PROD with RULES 1. Consolidation at DFARS 212.301 of provisions and clauses required for the acquisition of commercial items a. General Several respondents commented on the consolidation at DFARS 212.301 of provisions and clauses required for the acquisition of commercial items. Comment: One respondent applauded the revised DFARS 212.301 listing of 58 provisions and clauses for the acquisition of commercial items at the prime contract level. Response: Noted. Comment: One respondent wanted to know if DFARS 252.212–7001 is deleted, how does DoD plan to legally incorporate the requirements of the provisional DFARS 212.301(f) in a solicitation or contract without it being a DFARS Part 252 clause? Similarly, another respondent asked how offerors VerDate Mar<15>2010 16:29 Jun 24, 2013 Jkt 229001 and contractors will know what clauses the contracting officer considers to be relevant to a particular solicitation/ contract, without the current structure of the contracting officer marking the applicable clauses? Response: All commercial item clauses authorized for use will be listed at DFARS 212.301(f), and will be individually included in the solicitation and contract only when applicable to that particular acquisition. These clauses are added either in full text or incorporated by reference to legally incorporate their requirements into the solicitation and resultant contract. This is currently done in the same way for the other provisions and clauses listed in DFARS 212.301(f). Section 8002 of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355) requires that the regulations contain a list of contract clauses applicable to commercial acquisitions. The list is currently split into the following three locations: DFARS provision 252.212–7000; DFARS clause 252.212–7001; and DFARS 212.301(f). With the issuance of this final rule under DFARS rule 2011–D056, the list of clauses applicable to commercial item acquisitions is now wholly contained in DFARS 212.301(f). The approach in this final rule makes clause listings more closely mirror the way clauses are listed for noncommercial contracts. Offerors only need to read the clause number and title in a list outside of 252.212–7001 as opposed to within paragraph (a) or (b) of 252.212–7001 to review the clauses that are being legally incorporated into the solicitation. Comment: According to one respondent, by eliminating DFARS 252.212–7001 to save time and money on the part of the automated contract writing systems, DoD has now created a myriad of issues that can only be addressed by spending countless additional time on the part of the USG and contractor to differentiate the applicability of each clause to any particular solicitation/contract. Response: This approach should not cause any additional time for either the Government or the offerors/contractors. As already stated, commercial item clauses authorized for use will be listed at DFARS 212.301(f) and, when applicable to a particular solicitation and contract, they will be individually included in the solicitation and contract. Offerors/contractors will only need to read and review the clause numbers and titles that are incorporated in the solicitation/contract. This proposed approach should only save PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 37981 time on the part of the U.S. Government in selecting clauses, because now the contracting officer has to manually check boxes, and if using an automated system, the system can help the contracintg officer determine which clauses are applicable and then automatically include them in the solicitation/contract. The applicability of any clause in a commercial acquisition will be clear, and distinguished by whether or not it is listed individually within that solicitation/contract. Comment: One respondent asserted that revising DFARS 212.301(f) to incorporate a clause currently included under 252.212–7001, would take away a contracting officer’s discretion to add and subtract clauses as necessary. Response: As in the proposed rule, the final rule states ‘‘as prescribed’’ in each paragraph at DFARS 212.301(f) to indicate to the contracting officer whether or not to insert a provision or clause in the solicitation. The contract writing system does not automatically incorporate all clauses listed at 212.301(f) into all prime commercial item contracts. b. Inclusion of Specific Clauses at 212.301 Comment: One respondent stated that DFARS Clause 252.227–7013, Rights in Technical Data-Noncommercial Items, by its nature and title does not belong in a commercial item contract. The respondent asserted that the two scenarios in the guidelines at 227.7103– 6(a) for the insertion of 252.227–7013 will never materialize, i.e., the successful offeror(s) on a commercial item contract will never be required to deliver to the Government technical data pertaining to— • Noncommercial items; or • Commercial items for which the Government will have paid for any portion of the development costs. Response: DoD does occasionally procure altered commercial items, or articles embodying commercial items, that are based on a commercial design. On those occasions, the otherwise commercial item design needs to be adapted for some additional Government-specific characteristics. Since these changes will be paid for at Government expense, it means that both the 252.227–7015 clause, for wholly privately-funded parts, and the 252.227–7013 clause, for parts funded in part by the Government, would be inserted. Comment: One respondent asserted that there was no justification for the inclusion of several additional provisions/clauses into 212.301(f) E:\FR\FM\25JNR1.SGM 25JNR1 37982 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations because they do not meet the statutory criteria of being a ‘‘provision of law or Executive Order’’ or ‘‘standard commercial practice.’’ The respondent also questioned clauses that were already listed in 212.301(f). Response: The rule consolidates provisions and clauses into one list at 212.301(f) that were previously scattered throughout the DFARS. Each one of the provisions/clauses newly incorporated is required by statute or Executive Order, as indicated in the list at 212.301(f). All clauses listed within DFARS 212.301(f) have been approved for inclusion by the Director of DPAP in accordance with FAR 12.301(f) and have been cleared by OIRA. Questioning previously incorporated clauses is outside the scope of this case. 2. Flowdown of Clauses to Subcontracts for the Acquisition of Commercial Items Response: This clause is prescribed for use in construction contracts (which cannot be acquired using part 12 procedures). The statute requires flowdown to subcontracts that involve the acquisition of steel as a construction material (generally a commercial item). This clause is not imposing a burden on the commercial subcontractors. Rather, it is requiring that American steel producers, fabricators, and manufacturers be allowed an opportunity to compete. This requirement is not new and is currently contained in the present 252.244–7000 clause. Justification of pre-existing flowdown requirements is outside the scope of this case, but each such requirement was approved by DPAP and cleared by OIRA to implement statute, Executive order, or DoD policy. tkelley on DSK3SPTVN1PROD with RULES a. General Comment: One respondent suggested revising DFARS 252.244–7000 to delete all prime contractor discretionary provision/clause flowdown authority due to excessive practice by the primes to flowdown any and all clauses to satisfy its contractual obligations. Response: DoD has retained in the final rule the language at 252.244– 7000(b), which is the same as FAR 52.244–6(c)(2), in order to allow the prime contractor the necessary discretion to flow down to subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations. b. Specific Clause Flowdown Requirements Comment: One respondent commented that if the automated contract writing system ‘‘automatically’’ inserts clause 252.227–7013, then the prime contractor will be forced to flowdown –7013 into any commercial item subcontract. Response: Flowdown applicability of the clause is spelled out in 252.227– 7013(k)(2), which stipulates to flowdown the clause only when a commercial item is developed in any part at Government expense . . . ’’ Comment: One respondent asserts that by enacting the Federal Acquisition Streamlining Act (FASA) of 1994, Congress established a high bar for clauses that that may be applicable to subcontracts for commercial items. According to the respondent, there is no justification for flowdown of such clauses as DFARS 252.236–7013, Requirement for Competition Opportunity for American Steel Producers, Fabricators, and Manufacturers. 3. Prescriptions for Clauses Included in 252.204–7007 (Annual Representations and Certifications) Comment: One respondent stated that some provision prescriptions conflict with DFARS 204.1202(2), which says not to include the provisions listed therein in solicitations that include the provision 52.204–8, Annual Representations and Certifications. Response: In order to remedy the conflict, DoD has inserted the following statement inserted after each of the affected provision prescriptions: ‘‘If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.2XX–70XX in the solicitation.’’ 4. Other Editorial Comments Several respondents had editorial comments as to the language within the rule. Comment: One respondent recommended that 232.908, Contract clauses, should have the reference to 52.212–4 removed from the text, which requires use, in certain acquisitions, of the clause 252.232–7011 ‘‘in addition to either the approved clause prescribed in FAR 32.908 or FAR 52.212–4(i)(2) . . .’’ According to the respondent, FAR 32.908(c) already cites FAR 52.212–4. Response: FAR 52.212–4 is not prescribed in FAR 32.908(c). FAR 32.908(c) reads as follows: ‘‘Insert the clause at 52.232–25, Prompt Payment, in all other solicitations and contracts, except when the clause at 52.212–4 . . . applies . . . ’’ Although FAR 52.212–4 is used in part of the prescription for 52.232–25, it is prescribed in FAR 12.301(b)(3), not in FAR 32.908. However, this paragraph has been slightly revised in order to improve clarity. VerDate Mar<15>2010 17:22 Jun 24, 2013 Jkt 229001 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 Comment: One respondent questioned why the date change was proposed for 252.203–7000, because no change proposed. Response: There is only a change to the clause preface, so the date has not been changed. Comment: One respondent asserted that there is a conflict as to the flowdown applicability of DFARS 252.247–7023, Transportation of Supplies by Sea. It was noted that the Federal Register, Background Section II, states ‘‘Further, 10 U.S.C. 2631 is not listed in DFARS 212.503(a) as a law not applicable to commercial items.’’ On that basis, a number of provisions and clauses implementing 10 U.S.C. 2631 are included in 212.301. The respondent further noted that 10 U.S.C.2631 is listed in FAR 12.504 (a)(1) as a law ‘‘. . . not applicable to subcontracts at any tier for the acquisition of commercial items or commercial components at any tier.’’ Response: No conflict exists because FAR 12.504(a)(1) provides an exception to the nonapplicability to subcontracts for the acquisition of commercial items for the types of subcontracts listed at 47.504(d). Comment: One respondent noted lack of uniformity of word placement in the clause prescriptions that include applicability to solicitations and contracts using part 12 procedures for the acquisition of commercial items. Response: The clause prescriptions have been revised as necessary to ensure uniformity in placement of the wording ‘‘including solicitations (and contracts) using FAR part 12 procedures for the acquisition of 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 rule to have a significant economic impact on a E:\FR\FM\25JNR1.SGM 25JNR1 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES 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, a final 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. Rather than requiring the contracting officers to ‘‘check the applicable clauses,’’ this final 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 by 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. However, 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. There are no new reporting requirements or recordkeeping requirements associated with this rule. Finally, there are no significant alternatives that could further minimize the already minimal impact on businesses, small or large. V. Paperwork Reduction Act This final 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 currently approved for use in commercial contracts, which may impose any information collection burden on contractors or any VerDate Mar<15>2010 16:29 Jun 24, 2013 Jkt 229001 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 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, 215, 216, 219, 223, 225, 226, 227, 229, 232, 237, 243, 244, 246, 247, and 252 Government procurement. 37983 contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that include the FAR’’ in its place. PART 204—ADMINISTRATIVE MATTERS 4. Amend section 204.1202 by— a. Removing the introductory text; b. Revising paragraph (1); and c. In paragraph (2), removing ‘‘Do not include separately’’ and adding ‘‘When the clause at 52.204–7, Central Contractor Registration, is included in the solicitation, do not include separately’’ in its place. The revised text reads as follows: ■ ■ ■ ■ 204.1202 Solicitation provision. (1) When using the provision at FAR 52.204–8, Annual Representations and Certifications, use the provision with 252.204–7007, Alternate A, Annual Representations and Certifications; and * * * * * 204.7109 [Amended] Manuel Quinones, Editor, Defense Acquisition Regulations System. Therefore, DoD amends 48 CFR parts 203, 204, 205, 209, 211, 212, 215, 216, 219, 223, 225, 226, 227, 229, 232, 237, 243, 244, 246, 247, and 252 as follows: ■ 1. The authority citation for parts 203, 204, 205, 209, 211, 212, 215, 216, 219, 225, 229, 232, 237, 243, 244, 247, and 252 continue to read as follows: 5. Amend section 204.7109, in paragraph (b), by removing ‘‘for commercial items and initial provisioning spares’’ and adding ‘‘using FAR part 12 procedures for the acquisition of commercial items or for initial provisioning spares’’ in its place. PART 205—PUBLICIZING CONTRACT ACTIONS Authority: 41 U.S.C. 1303 and 48 CFR Chapter 1. PART 203—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 203.171–4 [Amended] 2. Amend section 203.171–4 by— a. In paragraph (a), removing ‘‘solicitations and contracts’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items’’ in its place. ■ b. In paragraph (b), removing ‘‘including solicitations for task and delivery orders’’ and adding ‘‘including solicitations using FAR part 12 procedures for the acquisition of commercial items and solicitations for task and delivery orders’’ in its place. ■ ■ 203.1004 [Amended] 3. Amend section 203.1004 by removing, in paragraph (a), ‘‘solicitations and contracts that include the FAR’’ and adding ‘‘solicitations and ■ PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 ■ 205.470 [Amended] 6. Amend section 205.470 by removing ‘‘in solicitations and contracts expected to exceed $1,000,000’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are expected to exceed $1,000,000’’ in its place. ■ PART 209—CONTRACTOR QUALIFICATIONS 7. Revise section 209.104–70 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 solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items that are 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). If the E:\FR\FM\25JNR1.SGM 25JNR1 37984 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.209–7001 in the solicitation. (b) Use the provision at 252.209–7002, Disclosure of Ownership or Control by a Foreign Government, in all solicitations, including those subject to the procedures in FAR part 13, when access to proscribed information is necessary for contract performance. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.209–7002 in the solicitation. ■ 8. In section 209.470–4, revise paragraph (a) to read as follows: 209.470–4 Solicitation provision and contract clause. (a) Use the provision at 252.209–7003, Reserve Officer Training Corps and Military Recruiting on Campus— Representation, in all solicitations with institutions of higher education. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.209–7003 in the solicitation. * * * * * PART 211—DESCRIBING AGENCY NEEDS 211.274–6 [Amended] 9. Amend section 211.274–6, paragraph (a)(1), by removing ‘‘solicitations and contracts that require’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that require’’ in its place. ■ 211.275–3 [Amended] 10. Amend section 211.275–3 by removing ‘‘in solicitations and contracts that will require’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that will require’’ in its place. ■ PART 212—ACQUISITION OF COMMERCIAL ITEMS 11. Revise section 212.301 to read as follows: ■ tkelley on DSK3SPTVN1PROD with RULES 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 VerDate Mar<15>2010 16:29 Jun 24, 2013 Jkt 229001 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 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)(1). (ix) Use the provision at 252.211– 7006, Passive Radio Frequency Identification, as prescribed in 211.275– 3. (x) Use the clause at 252.211–7007, Reporting of Government-Furnished Property, as prescribed in 211.274–6. (xi) Use the provisions at 252.215– 7007, Notice of Intent to Resolicit, and 252.215–7008, Only One Offer, as prescribed in 215.408(3) and (4), respectively. (xii) 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 when prescribed in 219.708(b)(1)(A)(2). (xiii) 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. (xiv) Use the clause at 252.223–7008, Prohibition of Hexavalent Chromium, as prescribed in 223.7306. (xv) Use the provision at 252.225– 7000, Buy American—Balance of PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 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). (xvi) Use the clause at 252.225–7001, Buy American 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). (xvii) 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. (xviii) 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. (xix) 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. (xx) 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. (xxi) 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. (xxii) 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 Pub. L. 107–117 and the same restriction in subsequent DoD appropriations acts. (xxiii) 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. (xxiv) 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. (xxv) Use the provision at 252.225– 7020, Trade Agreements Certificate, to comply with 19 U.S.C. 2501–2518 and 19 U.S.C. 3301 note. Alternate I also implements section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181). (A) Use the basic provision as prescribed in 225.1101(5)(i), E:\FR\FM\25JNR1.SGM 25JNR1 tkelley on DSK3SPTVN1PROD with RULES Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations (B) Use the provision with its Alternate I as prescribed in 225.1101(5)(ii). (xxvi) Use the clause at 252.225–7021, Trade Agreements to comply with 19 U.S.C. 2501–2518 and 19 U.S.C. 3301 note. Alternate I also implements section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181). (A) Use the basic clause as prescribed in 225.1101(6)(i). (B) Use the clause with its Alternate I as prescribed in 225.1101(6)(ii). (C) Use the clause with its Alternate II as prescribed in 225.1101(6)(iii). (xxvii) 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). (xxviii) 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). (xxix) 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 section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181). (xxx) 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 section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181). (xxxi) 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. (xxxii) 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. (xxxiii) 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. (xxxiv) Use the provision at 252.225– 7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate, to comply with 41 U.S.C. chapter 83 and 19 U.S.C. 3301 note. Alternates II, III, and V also implement section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181). (A) Use the basic provision as prescribed in 225.1101(10)(i). VerDate Mar<15>2010 16:29 Jun 24, 2013 Jkt 229001 (B) Use the provision with its Alternate I as prescribed in 225.1101(10)(ii). (C) Use the provision with its Alternate II as prescribed in 225.1101(10)(iii). (D) Use the provision with its Alternate III as prescribed in 225.1101(10)(iv). (E) Use the provision with its Alternate IV as prescribed in 225.1101(10)(v). (F) Use the provision with its Alternate V as prescribed in 225.1101(10)(vi). (xxxv) Use the clause at 252.225– 7036, Buy American—Free (B) Trade Agreements—Balance of Payments Program to comply with 41 U.S.C. chapter 83 and 19 U.S.C. 3301 note. Alternates II, III, and V also implement section 886 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181). (A) Use the basic clause as prescribed in 225.1101(11)(i)(A) (B) Use the clause with its Alternate I as prescribed in 225.1101(11)(i)(B). (C) Use the clause with its Alternate II as prescribed in 225.1101(11)(i)(A). (D) Use the clause with its Alternate III as prescribed in 225.1101(11)(i)(B). (E) Use the clause with its Alternate IV as prescribed in 225.1101(11)(i)(C). (F) Use the clause with its Alternate V as prescribed in 225.1101(11)(i)(C). (xxxvi) 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). (xxxvii) Use the clause at 252.225– 7038, Restriction on Acquisition of Air Circuit Breakers, as prescribed in 225.7006–4(b), to comply with 10 U.S.C. 2534(a)(3). (xxxviii) 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. (xxxix) 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). (xl) Use the clause at 252.225–7043, Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States, as prescribed in 225.7403–2. (xli) 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 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 37985 comply with section 8021 of Public Law 107–248 and similar sections in subsequent DoD appropriations acts. (xlii) 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. (xliii) 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. (xliv) Use the clause at 252.227–7037, Validation of Restrictive Markings on Technical Data, as prescribed in 227.7102–4(c). (xlv) 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. (xlvi) Use the clause at 252.232–7009, Mandatory Payment by Governmentwide Commercial Purchase Card, as prescribed in 232.1110. (xlvii) Use the clause at 252.232– 7010, Levies on Contract Payments, as prescribed in 232.7102. (xlviii) Use the clause at 252.232– 7011, Payments in Support of Emergencies and Contingency Operations, as prescribed in 232.908. (xlix) 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 Pub. L. 111–84. (l) 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 Pub. L. 108–375. (li) 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. (lii) Use the clause at 252.244–7000, Subcontracts for Commercial Items, as prescribed in 244.403. (liii) Use the clause at 252.246–7003, Notification of Potential Safety Issues, as prescribed in 246.371(a). (liv) 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. (lv) 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 E:\FR\FM\25JNR1.SGM 25JNR1 37986 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations comply with section 884 of Public Law 110–417. (lvi) Use the provision at 252.247– 7022, Representation of Extent of Transportation by Sea, as prescribed in 247.574(a). (lvii) 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). (lviii) Use the clause at 252.247–7024, Notification of Transportation of Supplies by Sea, as prescribed in 247.574(c). (lix) 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). (lx) 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. (lxi) 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 (Public Law 110–417). (lxii) Use the clause at 252.247–7028, Application for U.S Government Shipping Documentation/Instructions, as prescribed in 247.207. PART 215—CONTRACTING BY NEGOTIATION 215.408 [Amended] 12. Amend section 215.408 by— a. In paragraph (3), removing ‘‘in competitive solicitations that will be solicited’’ and adding ‘‘in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that will be solicited’’ in its place. ■ b. In paragraph (4)(i), removing ‘‘in competitive solicitations, unless an exception’’ and adding ‘‘in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, unless an exception’’ in its place. tkelley on DSK3SPTVN1PROD with RULES ■ ■ PART 216—TYPES OF CONTRACTS 13. Amend section 216.203–4–70, by revising paragraph (c)(2) to read as follows: ■ VerDate Mar<15>2010 16:29 Jun 24, 2013 Jkt 229001 216.203–4–70 clauses. Additional provisions and * * * * * (c) * * * (2) Use the provision at 252.216–7008, Economic Price Adjustment–Wage Rates or Material Prices Controlled by a Foreign Government—Representation, in solicitations that include the clause at 252.216–7003, Economic Price Adjustment–Wage Rates or Material Prices Controlled by a Foreign Government. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.216– 7008 in the solicitation. PART 219—SMALL BUSINESS PROGRAMS 14. Revise section 219.708 to read as follows: ■ Subcontracting Plan (DoD Contracts), with its Alternate I. (2) In contracts with contractors that have comprehensive subcontracting plans approved under the test program described in 219.702, do not use the clause at FAR 52.219–16, Liquidated Damages—Subcontracting Plan. (c)(1) Do not use the clause at FAR 52.219–10, Incentive Subcontracting Program, in contracts with contractors that have comprehensive subcontracting plans approved under the test program described in 219.702. PART 223—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE 15. The authority citation for part 223 is revised to read as follows: ■ 219.708 Contract clauses. (b)(1)(A) Except as provided in paragraph (b)(1)(B) of this section, 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)(1) In prime contracts, including 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 (DoD Contracts), and FAR 52.219–9, Small Business Subcontracting Plan. (2) However, also include in the prime contract, solely for the purpose of flowing the clauses down to subcontractors— (i) FAR clause 52.219–9, Small Business Subcontracting Plan, and 252.219–7003; or (ii) When the contract will not be reported in FPDS (see FAR 4.606 (c)(5)), FAR clause 52.219–9, Small Business Subcontracting Plan with its Alternate III and 252.219–7003, Small Business PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 223.7306 [Amended] 16. Amend section 223.7306 by removing ‘‘solicitations and contracts for supplies, maintenance and repair services, or construction’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for supplies, maintenance and repair services, or construction’’ in its place. ■ PART 225—FOREIGN ACQUISITION 225.370–6 [Amended] 17. Amend section 225.370–6 introductory text by removing ‘‘in all solicitations and contracts to be performed’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are to be performed’’ in its place. ■ 18. Amend section 225.1101 by— ■ a. In paragraph (1)(i), removing ‘‘solicitation that includes the clause’’ and adding ‘‘solicitation, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that includes the clause’’ in its place; and removing ‘‘Balance of Payments Program’’ and adding ‘‘Balance of Payments Program. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.225–7000 in the solicitation’’ in its place; ■ b. In paragraph (1)(ii), removing ‘‘Alternate I when the acquisition’’ and adding ‘‘Alternate I in solicitations, including solicitations using FAR part ■ E:\FR\FM\25JNR1.SGM 25JNR1 tkelley on DSK3SPTVN1PROD with RULES Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations 12 procedures for the acquisition of commercial items, when the acquisition’’ in its place; ■ c. In paragraph (2)(i) introductory text, removing ‘‘in solicitations and contracts unless—’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, unless—’’ in its place; ■ d. In paragraph (2)(ii), removing ‘‘Alternate I when the’’ and adding ‘‘Alternate I in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when the’’ in its place; ■ e. Revising paragraphs (5)(i) through(ii); ■ f. In paragraph (6)(i) removing ‘‘Trade Agreements, instead of the clause at FAR 52.225–5, Trade Agreements, if the World’’ and adding ‘‘Trade Agreements, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, if the World’’ in its place; ■ g. In paragraph (6)(ii) removing ‘‘solicitations and contracts that include’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that include’’ in its place; ■ h. In paragraph (6)(iii) removing ‘‘Alternate II when the’’ and adding ‘‘Alternate II in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when the’’ in its place; ■ i. Revising paragraph (7); ■ j. Revising paragraph (10); ■ k. In paragraph (11)(i) introductory text, removing ‘‘in solicitations and contracts for the items listed at 225.401– 70, including acquisitions of commercial items or components, when the estimated’’ and adding ‘‘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’’ in its place; ■ l. In paragraph (11)(i)(A), removing ‘‘Use the basic clause when’’ and adding ‘‘Use the basic clause in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when’’ in its place; ■ m. In paragraph (11)(i)(B), removing ‘‘Use the clause with its Alternate I when’’ and adding ‘‘Use the clause with its Alternate I in solicitations and contracts, including solicitations and VerDate Mar<15>2010 16:29 Jun 24, 2013 Jkt 229001 contracts using FAR part 12 procedures for the acquisition of commercial items, when’’ in its place; and ■ n. In paragraph (11)(i)(C), removing ‘‘Use the clause with its Alternate IV when’’ and adding ‘‘Use the clause with its Alternate IV in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when’’ in its place. The revised text reads as follows: 225.1101 Acquisition of supplies. * * * * * (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. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.225– 7020 in the solicitation. (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. * * * * * (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. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.225–7022 in the solicitation. * * * * * (10)(i) Use the provision at 252.225– 7035, Buy American—Free Trade Agreements—Balance of Payments Program Certificate, instead of the provision at FAR 52.225–4, Buy American—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—Free Trade Agreements— Balance of Payments Program. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.225–7035 in the solicitation. PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 37987 (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. (v) Use the provision with its Alternate IV 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 IV. (vi) Use the provision with its Alternate V 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 V. * * * * * 225.1103 [Amended] 19. In paragraph (3) of section 225.1103, remove ‘‘in a foreign country’’ and add ‘‘in a foreign country. If the solicitation includes the clause at FAR 52.204–7, do not separately list the provision 252.225–7042 in the solicitation’’ in its place. ■ 225.7002–3 [Amended] 20. Amend section 225.7002–3 by— a. In paragraph (a), removing ‘‘contracts exceeding’’ and adding ‘‘contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that exceed’’ in its place; and ■ b. In paragraph (b), removing ‘‘solicitations and contracts exceeding’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that exceed’’ in its place. ■ ■ 225.7003–5 [Amended] 21. Amend section 225.7003–5 by— a. In paragraph (a)(1) introductory text, removing ‘‘solicitations and contracts that—’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR ■ ■ E:\FR\FM\25JNR1.SGM 25JNR1 37988 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations part 12 procedures for the acquisition of commercial items, that—’’ in its place; ■ b. In paragraph (a)(2) introductory text, removing ‘‘solicitations and contracts that—’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that—’’ in its place; and ■ c. In paragraph (b) introductory text, removing ‘‘in solicitations—’’ and adding ‘‘in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items,—’’ in its place. 225.7006–4 [Amended] 22. Amend section 225.7006–4 by— a. In paragraph (a) introductory text, removing ‘‘in solicitations requiring air circuit’’ and adding ‘‘in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that require air circuit’’ in its place; and ■ b. In paragraph (b) introductory text, removing ‘‘solicitations and contracts requiring air circuit’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that require air circuit’’ in its place; and ■ c. In paragraph (b)(1), removing ‘‘An exception applies’’ and adding ‘‘An exception at 225.7006–2 applies’’ in its place. ■ ■ 225.7009–5 [Amended] [Amended] 24. Amend section 225.7017–4 by— a. In paragraph (a)(1) introductory text, by removing ‘‘in solicitations for a contract’’ and adding ‘‘in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a contract’’ in its place; and ■ b. In paragraph (a)(2), removing ‘‘resultant contract if it’’ and adding ‘‘resultant contract, including contracts using FAR part 12 procedures for the acquisition of commercial items, if it’’ in its place; and ■ c. In paragraph (b), removing ‘‘in solicitations containing the clause’’ and adding ‘‘in solicitations, including solicitations using FAR part 12 procedures for the acquisition of tkelley on DSK3SPTVN1PROD with RULES ■ ■ VerDate Mar<15>2010 16:29 Jun 24, 2013 225.7307 Jkt 229001 [Amended] 25. Amend section 225.7307 by— a. In paragraph (a), removing ‘‘solicitations and contracts for FMS’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for FMS’’ in its place; and ■ b. In paragraph (b), removing ‘‘solicitations and contracts for the purchase’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the purchase’’ in its place. ■ ■ 225.7402–5 [Amended] 26. In section 225.7402–5, amend paragraph (a) by removing ‘‘solicitations and contracts that authorize’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that authorize’’ in its place. ■ 225.7403–2 27. Amend section 225.7403–2 introductory text by removing ‘‘solicitations and contracts that require’’ and adding ‘‘solicitations and contracts, and contracts using FAR part 12 procedures for the acquisition of commercial items, that require’’ in its place. [Amended] 28. Section 225.7605 is amended by— a. Removing ‘‘Unless an exception applies’’ and adding ‘‘Unless an exception at 225.7603 applies’’ in its place; and ■ b. Removing ‘‘in all solicitations’’ and adding ‘‘in all solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items. If the solicitation includes the clause at FAR 52.204–7, do not separately list 252.225–7031 in the solicitation’’ in its place. ■ ■ 225.7703–5 [Amended] 29. Amend section 225.7703–5 by— a. In paragraph (a) introductory text, removing ‘‘in solicitations that provide’’ and adding ‘‘in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that provide’’ in its place; ■ b. In paragraph (b), removing ‘‘in solicitations that include’’ and adding ‘‘in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that include’’ in its place; and ■ ■ PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 c. In paragraph (c)(1) introductory text, removing ‘‘in solicitations and contracts that—’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that—’’ in its place. ■ PART 226—OTHER SOCIOECONOMIC PROGRAMS 30. The authority citation for part 226 is revised to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 226.104 [Amended] 31. Amend section 226.104 by removing ‘‘in solicitations and contracts for supplies’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for supplies’’ in its place. ■ PART 227—PATENTS, DATA, AND COPYRIGHTS 32. The authority citation for part 227 is revised to read as follows: ■ [Amended] ■ 225.7605 23. Amend section 225.7009–5 introductory text by removing ‘‘in solicitations and contracts, unless—’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, unless—’’ in its place. ■ 225.7017–4 commercial items, that contain the clause’’ in its place. Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 227.7102–4 [Amended] 33. Amend section 227.7102–4 by— a. In paragraph (a)(1), removing ‘‘in all solicitations and contracts when’’ and adding ‘‘in all solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when’’ in its place; ■ b. In paragraph (a)(2), removing ‘‘Alternate I in contracts for the’’ and adding ‘‘Alternate I in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for the’’ in its place; and ■ c. In paragraph (c), removing ‘‘in all solicitations and contracts for commercial items’’ and adding ‘‘in solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items’’ in its place. ■ ■ 227.7103–6 [Amended] 34. Amend section 227.7103–6 by— a. In paragraph (a), removing ‘‘solicitations and contracts when the’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when the’’ in its place; ■ b. In paragraph (b)(1) introductory text, removing ‘‘Alternate I in research contracts when the’’ and adding ■ ■ E:\FR\FM\25JNR1.SGM 25JNR1 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations ‘‘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’’ in its place; and ■ c. In paragraph (b)(2), removing ‘‘Alternate II in contracts for the’’ and adding ‘‘Alternate II in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the’’ in its place. PART 229—TAXES (2) Payment by Governmentwide commercial purchase card is required for orders or calls valued at or below the micro-purchase threshold under the contract or agreement. solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items. 232.7004 ■ [Amended] 38. Amend paragraph (a) of section 232.704 by removing ‘‘solicitations and contracts’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items’’ in its place. ■ 232.7102 229.402–70 [Amended] [Amended] 39. Amend section 232.7102 by removing ‘‘solicitations and contracts other than those for micro-purchases’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items’’ in its place. ■ 35. Amend section 229.402–70 by— a. In paragraph (c)(2), removing ‘‘252.229–7003, Tax Exemptions (Italy)’’ and adding ‘‘252.229–7003, Tax Exemptions (Italy). If the solicitation includes the clause at FAR 52.204–7, do not separately list 252.229–7012 in the solicitation’’ in its place. ■ b. In paragraph (e)(2), removing ‘‘252.229–7005, Tax Exemptions (Spain)’’ and adding ‘‘252.229–7005, Tax Exemptions (Spain). If the solicitation includes the clause at FAR 52.204–7, do not separately list 252.229–7013 in the solicitation.’’ in its place. ■ ■ PART 232—CONTRACT FINANCING PART 237—SERVICE CONTRACTING 237.171–4 40. Amend section 237.171–4 by removing ‘‘in solicitations and contracts for the acquisition’’ and adding ‘‘in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the acquisition’’ in its place. 237.173–5 232.908 ■ 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 acquisitions that meet the applicability criteria at 232.901(1). Use of this clause is in addition to use of either the approved Payment clause prescribed in FAR 32.908 or the clause at FAR 52.212–4, Contract Terms and Conditions— Commercial Items. ■ 37. Revise section 232.1110 to read as follows: 232.1110 Solicitation provision and contract clauses. tkelley on DSK3SPTVN1PROD with RULES [Amended] ■ 36. Revise section 232.908 to read as follows: ■ 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— (1) Placement of orders or calls valued at or below the micro-purchase threshold is anticipated; and VerDate Mar<15>2010 16:29 Jun 24, 2013 Jkt 229001 37989 [Amended] 41. Amend section 237.173–5 by removing ‘‘solicitations and contracts for the provision’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the provision’’ in its place. PART 243—CONTRACT MODIFICATIONS 243.205–71 [Amended] 42. Amend section 243.205–71 by removing ‘‘solicitations and contracts estimated’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are estimated’’ in its place. ■ PART 244—SUBCONTRACTING POLICIES AND PROCEDURES 43. Revise section 244.403 to read as follows: ■ 244.403 Contract clause. Use the clause at 252.244–7000, Subcontracts for Commercial Items, in solicitations and contracts, including PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 PART 246—QUALITY ASSURANCE 44. The authority citation for part 246 is revised to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 246.270–4 [Amended] 45. Amend section 246.270–4 by removing ‘‘solicitations and contracts for the construction’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for the construction’’ in its place. ■ 246.371 [Amended] 46. Amend section 246.371, in the introductory text of paragraph (a), by removing ‘‘solicitations and contracts for the acquisition of—’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for the acquisition of—’’ in its place. ■ PART 247—TRANSPORTATION 247.207 [Amended] 47. Amend section 247.207 by— a. In paragraph (1), removing ‘‘solicitations and contracts for carriage’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for carriage’’ in its place. ■ b. In paragraph (2), removing ‘‘Documentation/Instructions, when shipping’’ and adding ‘‘Documentation/ Instructions in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, when shipping’’ in its place. ■ 48. Revise section 247.571 to read as follows: ■ ■ 247.571 Definitions. As used in this subpart— (a) Components, foreign flag vessel, ocean transportation, supplies, and U.S.-flag vessel have the meaning given in the clause at 252.247–7023, Transportation of Supplies by Sea. (b) Reflagging or repair work 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 have the meaning given in the provision at 252.247–7026, Evaluation Preference for E:\FR\FM\25JNR1.SGM 25JNR1 37990 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations Use of Domestic Shipyards—Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade. 247.572 [Amended] 49. Amend section 247.572 by— a. In paragraph (a) introductory text, removing ‘‘DoD contractors must transport’’ and adding ‘‘In accordance with 10 U.S.C. 2631(a), DoD contractors must transport’’ in its place; and ■ b. In paragraph (c), adding introductory text. The added text reads as follows: ■ ■ 247.572 Policy. * * * * * (c) In accordance with 10 U.S.C. 2631(b)— * * * * * ■ 50. Amend section 247.574 by— ■ a. Revising paragraph (a) and paragraph (b)(1); ■ b. In paragraph (c), removing ‘‘in all contracts for which’’ and adding ‘‘in all contracts, including contracts using FAR part 12 procedures for the acquisition of commercial items, for which’’ in its place; ■ c. In paragraph (d), removing ‘‘solicitations and contracts for the use of’’ and adding ‘‘solicitations and contracts, including time charter solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the use of’’ in its place; and removing ‘‘in accordance with 247.572(c)’’ and adding ‘‘in accordance with 247.572(c)(2)’’ in its place; ■ d. In paragraph (e), removing ‘‘in solicitations that require’’ and adding ‘‘in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that require’’ in its place; and ■ e. In paragraph (f), removing ‘‘solicitations and contracts for the charter of’’ and adding ‘‘solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the charter of’’ in its place. The revised text reads as follows: tkelley on DSK3SPTVN1PROD with RULES 247.574 Solicitation provisions and contract clauses. 16:29 Jun 24, 2013 Jkt 229001 PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.203–7000 [Amended] 51. Amend the introductory text of section 252.203–7000 by removing ‘‘203.171–4’’ and adding ‘‘203.171–4(a)’’ in its place. ■ 252.211–7003 [Amended] 52. Amend section 252.211–7003 by— a. In introductory text, removing ‘‘211.274–6(a)’’ and adding ‘‘211.274– 6(a)(1)’’ in its place; and removing the clause date ‘‘(JUN 2011)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (g), removing ‘‘paragraph (g), in the applicable subcontract(s)’’ and adding ‘‘paragraph (g), in the applicable subcontract(s), including subcontracts for commercial items’’ in its place. ■ 53. Remove and reserve section 252.212–7000. ■ 54. Remove and reserve section 252.212–7001. ■ ■ 252.223–7008 [Amended] 55. Amend section 252.223–7008 by— a. Removing the clause date ‘‘(MAY 2011)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (d), removing ‘‘in all subcontracts for supplies,’’ and adding ‘‘in all subcontracts, including subcontracts for commercial items, that are for supplies,’’ in its place. ■ ■ 252.225–7009 [Amended] 56. Amend section 252.225–7009 by— a. Removing the clause date ‘‘(MAR 2013)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (e), removing ‘‘substance of this clause in subcontracts for items’’ and adding ‘‘substance of this clause in subcontracts, including subcontracts for commercial items, that are for items’’ in its place. ■ ■ (a)(1) 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— (i) Those for direct purchase of ocean transportation services; or VerDate Mar<15>2010 (ii) Those with an anticipated value at or below the simplified acquisition threshold. (2) If the solicitation includes the clause at FAR 52.204–7, do not separately list 252.247–7022 in the solicitation. (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. * * * * * PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 252.225–7039 [Amended] 57. Amend section 252.225–7039 by— a. Removing the clause date ‘‘(JUN 2012)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (e), removing ‘‘in all subcontracts that will be performed’’ and adding ‘‘in all subcontracts, including subcontracts for commercial items, that will be performed’’ in its place. ■ ■ 252.227–7013 [Amended] 58. Amend section 252.227–7013 by— a. Removing the clause date ‘‘(MAY 2013)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (k)(2), removing ‘‘contractual instrument, and require’’ and adding ‘‘contractual instrument, including subcontracts or other contractual instruments for commercial items, and require’’ in its place. ■ ■ 252.227–7015 [Amended] 59. Amend section 252.227–7015 by— a. Removing the clause date ‘‘(MAY 2013)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (e)(2), removing ‘‘other contractual instrument, and require its subcontractors’’ and adding ‘‘other contractual instrument, including subcontracts and other contractual instruments for commercial items, and require its subcontractors’’ in its place. ■ ■ 60. Amend section 252.227–7037 by— a. Revising the introductory text; b. Removing the clause date ‘‘(JUN 2012)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ c. In paragraph (l), removing ‘‘contractual instruments with its subcontractors’’ and adding ‘‘contractual instruments, including subcontracts and other contractual instruments for commercial items, with its subcontractors’’ in its place. The revision reads as follows: ■ ■ ■ 252.227–7037 Validation of restrictive markings on technical data. As prescribed in 227.7102–4(c), 227.7103–6(e)(3), 27.7104(e)(5), or 227.7203–6(f), use the following clause: * * * * * 252.236–7013 [Amended] 61. Amend section 252.236–7013 by— a. Removing the clause date ‘‘(JAN 2009)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (c), removing ‘‘acquisition of steel as a construction material’’ and adding ‘‘acquisition of steel as a construction material, including subcontracts for the ■ ■ E:\FR\FM\25JNR1.SGM 25JNR1 Federal Register / Vol. 78, No. 122 / Tuesday, June 25, 2013 / Rules and Regulations acquisition of commercial items’’ in its place. 252.237–7010 [Amended] 62. Amend section 252.237–7010 by— a. Removing the clause date ‘‘(NOV 2010)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (c), removing ‘‘in all subcontracts that may require’’ and adding ‘‘in all subcontracts, including subcontracts for commercial items, that may require’’ in its place. ■ ■ 252.237–7019 [Amended] 63. Amend section 252.237–7019 by— a. Removing the clause date ‘‘(SEP 2006)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (c), removing ‘‘in all subcontracts that may require’’ and adding ‘‘in all subcontracts, including subcontracts for commercial items, that may require’’ in its place. ■ 64. Revise section 252.244–7000 to read as follows: As prescribed in 244.403, use the following clause: SUBCONTRACTS FOR COMMERCIAL ITEMS (JUN 2013) (a) The Contractor is not required to flow down the terms of any Defense Federal Acquisition Regulation Supplement (DFARS) 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 under this contract, including subcontracts for the acquisition of commercial items. (End of clause) [Amended] 65. Amend section 252.246–7003 by— a. Removing the clause date ‘‘(JAN 2007)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (f)(2) introductory text, removing ‘‘For those subcontracts, described in’’ and adding ‘‘For those subcontracts, including subcontracts for commercial items, described in’’ in its place. tkelley on DSK3SPTVN1PROD with RULES ■ ■ [Amended] 66. Amend section 252.247–7003 by— a. Removing the clause date ‘‘(SEP 2010)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (c), removing ‘‘in all subcontracts with motor carriers’’ and ■ ■ VerDate Mar<15>2010 16:29 Jun 24, 2013 [Amended] 67. Amend section 252.247–7023 by— a. Removing the clause date ‘‘(MAY 2002)’’ and adding ‘‘(JUN 2013)’’ in its place; and ■ b. In paragraph (h) introductory text, removing ‘‘of this clause, the Contractor shall’’ and adding ‘‘of this clause, including subcontracts for commercial items, the Contractor shall’’ in its place. ■ ■ Jkt 229001 BILLING CODE 5001–06–P DEPARTMENT OF TRANSPORTATION Federal Transit Administration 49 CFR Part 655 [Docket No. FTA–2013–0012] RIN 2132–AB09 252.244–7000 Subcontracts for Commercial Items. 252.247–7003 252.247–7023 [FR Doc. 2013–15030 Filed 6–24–13; 8:45 am] ■ ■ 252.246–7003 adding ‘‘in all subcontracts, including subcontracts for commercial items, with motor carriers’’ in its place. Alcohol and Controlled Substances Testing Federal Transit Administration (FTA), DOT. ACTION: Final rule. AGENCY: This final rule is issued to revise sections of the Alcohol and Controlled Substances (D&A) Testing regulation to reflect recent amendments to the law. The final rule also includes technical corrections to the D&A testing regulation to more clearly explain existing compliance requirements, update regulatory terms, and remove repealed statutory provisions. Because this rule merely implements a statutory provision without agency interpretation FTA finds that public comment is unnecessary under the circumstances. DATES: This final rule is effective on June 25, 2013. FOR FURTHER INFORMATION CONTACT: For program issues, contact Vincent Valdes, Office of Transit Safety and Oversight (TSO), Federal Transit Administration, 1200 New Jersey Avenue SE., Washington, DC 20590–0001 (telephone: 202–366–4052); or email: Vincent.Valdes@dot.gov). For legal issues, contact Bruce Walker, Office of Chief Counsel (TCC), FTA, 1200 New Jersey Avenue SE., Washington, DC 20590–0001 (telephone: 202–366–9109); (email: Bruce.Walker@dot.gov). Office hours are from 8 a.m. to 6 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: SUMMARY: PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 37991 I. Background FTA is publishing this rule without a prior proposal because it merely incorporates recent statutory changes to FTA’s drug and alcohol testing program and makes other minor technical amendments. Specifically, this rule amends 49 CFR part 655 to implement 49 U.S.C. 5331(g)(2), as amended by § 20022 of the Moving Ahead for Progress in the 21st Century Act, Public Law 112–141 (2012) (MAP–21). The new legislation provides the Secretary of the Department of Transportation (DOT) with the option of barring a recipient from receiving Federal public transportation funds, in an amount the Secretary considers appropriate, for non-compliance with FTA’s D&A regulations which are codified at 49 CFR part 655. This authority is delegated to the FTA Administrator pursuant to 49 CFR 1.91. With this rule, FTA is amending part 655 to implement this discretionary statutory enforcement remedy available to the Administrator. Additionally, this rule makes several technical corrections to part 655 that include: (1) Removing reference to 23 U.S.C. 103(e)(4) from 49 CFR part 655 as it relates to recipients of the Federal Highway Administration’s Interstate Substitute Program which has been repealed; (2) replacing the terms ‘‘mass transportation’’ and ‘‘mass transit’’ with the term ‘‘public transportation’’ as defined in 49 U.S.C. 5331(a)(3); and (3) revising Subpart I to more clearly explain the statutory requirement to establish a compliant D&A testing program as a condition for receiving Federal transit funds and the associated compliance and certification requirements for recipients. This rule simply adopts the statute without agency interpretation and includes ministerial technical corrections; therefore, pursuant to 5 U.S.C. 553(b)(3)(A), FTA finds good cause to publish this as a final rule without public comment because prior notice and comment would be unnecessary under the circumstances. Further, for these reasons, FTA also finds good cause pursuant to 5 U.S.C. 553(d)(2), to make the rule effective upon publication in the Federal Register. II. Overview and General Discussion of the Rule A. Purpose In order to implement 49 U.S.C. 5331(g)(2), as amended by section 20222 of MAP–21, this rule amends 49 CFR part 655 to effect the FTA Administrator’s discretionary authority E:\FR\FM\25JNR1.SGM 25JNR1

Agencies

[Federal Register Volume 78, Number 122 (Tuesday, June 25, 2013)]
[Rules and Regulations]
[Pages 37980-37991]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15030]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203, 204, 205, 209, 211, 212, 215, 216, 219, 223, 225, 
226, 227, 229, 232, 237, 243, 244, 246, 247, and 252

RIN 0750-AH63


Defense Federal Acquisition Regulation Supplement: Solicitation 
Provisions and Contract Clauses for Acquisition of Commercial Items 
(DFARS Case 2011-D056)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to 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: Effective Date: June 25, 2013.

FOR FURTHER INFORMATION CONTACT: Amy Williams, Telephone 571-372-6106.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule at 77 FR 20601 on April 5, 2012, 
revising the Defense Federal Acquisition Regulation Supplement (DFARS) 
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. 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

[[Page 37981]]

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, which requires revision 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 for contracts for 
noncommercial items. 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

    Four respondents submitted comments on the proposed rule. The 
following is a discussion of the comments and the changes made to the 
rule as a result of those comments.

A. Summary of significant changes from the proposed rule

    DoD has amended the final rule by adding a statement after the 
prescriptions for the provisions covered under DFARS 252.204-7007, 
Alternate A, Annual Representations and Certifications, that the 
individual provisions therein should not be included separately if the 
clause at FAR 52.204-7 is included in the solicitation (see section 
II.B.3. of this preamble). DoD did not make any other significant 
changes from the proposed rule.

B. Analysis of public comments

1. Consolidation at DFARS 212.301 of provisions and clauses required 
for the acquisition of commercial items
    a. General
    Several respondents commented on the consolidation at DFARS 212.301 
of provisions and clauses required for the acquisition of commercial 
items.
    Comment: One respondent applauded the revised DFARS 212.301 listing 
of 58 provisions and clauses for the acquisition of commercial items at 
the prime contract level.
    Response: Noted.
    Comment: One respondent wanted to know if DFARS 252.212-7001 is 
deleted, how does DoD plan to legally incorporate the requirements of 
the provisional DFARS 212.301(f) in a solicitation or contract without 
it being a DFARS Part 252 clause? Similarly, another respondent asked 
how offerors and contractors will know what clauses the contracting 
officer considers to be relevant to a particular solicitation/contract, 
without the current structure of the contracting officer marking the 
applicable clauses?
    Response: All commercial item clauses authorized for use will be 
listed at DFARS 212.301(f), and will be individually included in the 
solicitation and contract only when applicable to that particular 
acquisition. These clauses are added either in full text or 
incorporated by reference to legally incorporate their requirements 
into the solicitation and resultant contract. This is currently done in 
the same way for the other provisions and clauses listed in DFARS 
212.301(f).
    Section 8002 of the Federal Acquisition Streamlining Act of 1994 
(Public Law 103-355) requires that the regulations contain a list of 
contract clauses applicable to commercial acquisitions. The list is 
currently split into the following three locations: DFARS provision 
252.212-7000; DFARS clause 252.212-7001; and DFARS 212.301(f).
    With the issuance of this final rule under DFARS rule 2011-D056, 
the list of clauses applicable to commercial item acquisitions is now 
wholly contained in DFARS 212.301(f).
    The approach in this final rule makes clause listings more closely 
mirror the way clauses are listed for non-commercial contracts. 
Offerors only need to read the clause number and title in a list 
outside of 252.212-7001 as opposed to within paragraph (a) or (b) of 
252.212-7001 to review the clauses that are being legally incorporated 
into the solicitation.
    Comment: According to one respondent, by eliminating DFARS 252.212-
7001 to save time and money on the part of the automated contract 
writing systems, DoD has now created a myriad of issues that can only 
be addressed by spending countless additional time on the part of the 
USG and contractor to differentiate the applicability of each clause to 
any particular solicitation/contract.
    Response: This approach should not cause any additional time for 
either the Government or the offerors/contractors. As already stated, 
commercial item clauses authorized for use will be listed at DFARS 
212.301(f) and, when applicable to a particular solicitation and 
contract, they will be individually included in the solicitation and 
contract. Offerors/contractors will only need to read and review the 
clause numbers and titles that are incorporated in the solicitation/
contract. This proposed approach should only save time on the part of 
the U.S. Government in selecting clauses, because now the contracting 
officer has to manually check boxes, and if using an automated system, 
the system can help the contracintg officer determine which clauses are 
applicable and then automatically include them in the solicitation/
contract. The applicability of any clause in a commercial acquisition 
will be clear, and distinguished by whether or not it is listed 
individually within that solicitation/contract.
    Comment: One respondent asserted that revising DFARS 212.301(f) to 
incorporate a clause currently included under 252.212-7001, would take 
away a contracting officer's discretion to add and subtract clauses as 
necessary.
    Response: As in the proposed rule, the final rule states ``as 
prescribed'' in each paragraph at DFARS 212.301(f) to indicate to the 
contracting officer whether or not to insert a provision or clause in 
the solicitation. The contract writing system does not automatically 
incorporate all clauses listed at 212.301(f) into all prime commercial 
item contracts.
b. Inclusion of Specific Clauses at 212.301
    Comment: One respondent stated that DFARS Clause 252.227-7013, 
Rights in Technical Data-Noncommercial Items, by its nature and title 
does not belong in a commercial item contract. The respondent asserted 
that the two scenarios in the guidelines at 227.7103-6(a) for the 
insertion of 252.227-7013 will never materialize, i.e., the successful 
offeror(s) on a commercial item contract will never be required to 
deliver to the Government technical data pertaining to--
     Noncommercial items; or
     Commercial items for which the Government will have paid 
for any portion of the development costs.
    Response: DoD does occasionally procure altered commercial items, 
or articles embodying commercial items, that are based on a commercial 
design. On those occasions, the otherwise commercial item design needs 
to be adapted for some additional Government-specific characteristics. 
Since these changes will be paid for at Government expense, it means 
that both the 252.227-7015 clause, for wholly privately-funded parts, 
and the 252.227-7013 clause, for parts funded in part by the 
Government, would be inserted.
    Comment: One respondent asserted that there was no justification 
for the inclusion of several additional provisions/clauses into 
212.301(f)

[[Page 37982]]

because they do not meet the statutory criteria of being a ``provision 
of law or Executive Order'' or ``standard commercial practice.'' The 
respondent also questioned clauses that were already listed in 
212.301(f).
    Response: The rule consolidates provisions and clauses into one 
list at 212.301(f) that were previously scattered throughout the DFARS. 
Each one of the provisions/clauses newly incorporated is required by 
statute or Executive Order, as indicated in the list at 212.301(f). All 
clauses listed within DFARS 212.301(f) have been approved for inclusion 
by the Director of DPAP in accordance with FAR 12.301(f) and have been 
cleared by OIRA. Questioning previously incorporated clauses is outside 
the scope of this case.
2. Flowdown of Clauses to Subcontracts for the Acquisition of 
Commercial Items
a. General
    Comment: One respondent suggested revising DFARS 252.244-7000 to 
delete all prime contractor discretionary provision/clause flowdown 
authority due to excessive practice by the primes to flowdown any and 
all clauses to satisfy its contractual obligations.
    Response: DoD has retained in the final rule the language at 
252.244-7000(b), which is the same as FAR 52.244-6(c)(2), in order to 
allow the prime contractor the necessary discretion to flow down to 
subcontracts for commercial items a minimal number of additional 
clauses necessary to satisfy its contractual obligations.
b. Specific Clause Flowdown Requirements
    Comment: One respondent commented that if the automated contract 
writing system ``automatically'' inserts clause 252.227-7013, then the 
prime contractor will be forced to flowdown -7013 into any commercial 
item subcontract.
    Response: Flowdown applicability of the clause is spelled out in 
252.227-7013(k)(2), which stipulates to flowdown the clause only when a 
commercial item is developed in any part at Government expense . . . ''
    Comment: One respondent asserts that by enacting the Federal 
Acquisition Streamlining Act (FASA) of 1994, Congress established a 
high bar for clauses that that may be applicable to subcontracts for 
commercial items. According to the respondent, there is no 
justification for flowdown of such clauses as DFARS 252.236-7013, 
Requirement for Competition Opportunity for American Steel Producers, 
Fabricators, and Manufacturers.
    Response: This clause is prescribed for use in construction 
contracts (which cannot be acquired using part 12 procedures). The 
statute requires flowdown to subcontracts that involve the acquisition 
of steel as a construction material (generally a commercial item). This 
clause is not imposing a burden on the commercial subcontractors. 
Rather, it is requiring that American steel producers, fabricators, and 
manufacturers be allowed an opportunity to compete. This requirement is 
not new and is currently contained in the present 252.244-7000 clause.
    Justification of pre-existing flowdown requirements is outside the 
scope of this case, but each such requirement was approved by DPAP and 
cleared by OIRA to implement statute, Executive order, or DoD policy.
3. Prescriptions for Clauses Included in 252.204-7007 (Annual 
Representations and Certifications)
    Comment: One respondent stated that some provision prescriptions 
conflict with DFARS 204.1202(2), which says not to include the 
provisions listed therein in solicitations that include the provision 
52.204-8, Annual Representations and Certifications.
    Response: In order to remedy the conflict, DoD has inserted the 
following statement inserted after each of the affected provision 
prescriptions:
    ``If the solicitation includes the clause at FAR 52.204-7, do not 
separately list the provision 252.2XX-70XX in the solicitation.''
4. Other Editorial Comments
    Several respondents had editorial comments as to the language 
within the rule.
    Comment: One respondent recommended that 232.908, Contract clauses, 
should have the reference to 52.212-4 removed from the text, which 
requires use, in certain acquisitions, of the clause 252.232-7011 ``in 
addition to either the approved clause prescribed in FAR 32.908 or FAR 
52.212-4(i)(2) . . .'' According to the respondent, FAR 32.908(c) 
already cites FAR 52.212-4.
    Response: FAR 52.212-4 is not prescribed in FAR 32.908(c). FAR 
32.908(c) reads as follows: ``Insert the clause at 52.232-25, Prompt 
Payment, in all other solicitations and contracts, except when the 
clause at 52.212-4 . . . applies . . . '' Although FAR 52.212-4 is used 
in part of the prescription for 52.232-25, it is prescribed in FAR 
12.301(b)(3), not in FAR 32.908. However, this paragraph has been 
slightly revised in order to improve clarity.
    Comment: One respondent questioned why the date change was proposed 
for 252.203-7000, because no change proposed.
    Response: There is only a change to the clause preface, so the date 
has not been changed.
    Comment: One respondent asserted that there is a conflict as to the 
flowdown applicability of DFARS 252.247-7023, Transportation of 
Supplies by Sea. It was noted that the Federal Register, Background 
Section II, states ``Further, 10 U.S.C. 2631 is not listed in DFARS 
212.503(a) as a law not applicable to commercial items.'' On that 
basis, a number of provisions and clauses implementing 10 U.S.C. 2631 
are included in 212.301. The respondent further noted that 10 
U.S.C.2631 is listed in FAR 12.504 (a)(1) as a law ``. . . not 
applicable to subcontracts at any tier for the acquisition of 
commercial items or commercial components at any tier.''
    Response: No conflict exists because FAR 12.504(a)(1) provides an 
exception to the nonapplicability to subcontracts for the acquisition 
of commercial items for the types of subcontracts listed at 47.504(d).
    Comment: One respondent noted lack of uniformity of word placement 
in the clause prescriptions that include applicability to solicitations 
and contracts using part 12 procedures for the acquisition of 
commercial items.
    Response: The clause prescriptions have been revised as necessary 
to ensure uniformity in placement of the wording ``including 
solicitations (and contracts) using FAR part 12 procedures for the 
acquisition of 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 rule to have a significant economic impact 
on a

[[Page 37983]]

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, a final 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. Rather than requiring the contracting 
officers to ``check the applicable clauses,'' this final 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 by 
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. However, 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.
    There are no new reporting requirements or recordkeeping 
requirements associated with this rule. Finally, there are no 
significant alternatives that could further minimize the already 
minimal impact on businesses, small or large.

V. Paperwork Reduction Act

    This final 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 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 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, 215, 
216, 219, 223, 225, 226, 227, 229, 232, 237, 243, 244, 246, 247, 
and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.
    Therefore, DoD amends 48 CFR parts 203, 204, 205, 209, 211, 212, 
215, 216, 219, 223, 225, 226, 227, 229, 232, 237, 243, 244, 246, 247, 
and 252 as follows:

0
1. The authority citation for parts 203, 204, 205, 209, 211, 212, 215, 
216, 219, 225, 229, 232, 237, 243, 244, 247, and 252 continue 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


203.171-4  [Amended]

0
2. Amend section 203.171-4 by--
0
a. In paragraph (a), removing ``solicitations and contracts'' and 
adding ``solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items'' in its place.
0
b. In paragraph (b), removing ``including solicitations for task and 
delivery orders'' and adding ``including solicitations using FAR part 
12 procedures for the acquisition of commercial items and solicitations 
for task and delivery orders'' in its place.


203.1004  [Amended]

0
3. Amend section 203.1004 by removing, in paragraph (a), 
``solicitations and contracts that include the FAR'' and adding 
``solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that include the FAR'' in its place.

PART 204--ADMINISTRATIVE MATTERS

0
4. Amend section 204.1202 by--
0
a. Removing the introductory text;
0
b. Revising paragraph (1); and
0
c. In paragraph (2), removing ``Do not include separately'' and adding 
``When the clause at 52.204-7, Central Contractor Registration, is 
included in the solicitation, do not include separately'' in its place.
    The revised text reads as follows:


204.1202  Solicitation provision.

    (1) When using the provision at FAR 52.204-8, Annual 
Representations and Certifications, use the provision with 252.204-
7007, Alternate A, Annual Representations and Certifications; and
* * * * *


204.7109  [Amended]

0
5. Amend section 204.7109, in paragraph (b), by removing ``for 
commercial items and initial provisioning spares'' and adding ``using 
FAR part 12 procedures for the acquisition of commercial items or for 
initial provisioning spares'' in its place.

PART 205--PUBLICIZING CONTRACT ACTIONS


205.470   [Amended]

0
6. Amend section 205.470 by removing ``in solicitations and contracts 
expected to exceed $1,000,000'' and adding ``in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that are expected 
to exceed $1,000,000'' in its place.

PART 209--CONTRACTOR QUALIFICATIONS

0
7. Revise section 209.104-70 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 solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items that are 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). If the

[[Page 37984]]

solicitation includes the clause at FAR 52.204-7, do not separately 
list the provision 252.209-7001 in the solicitation.
    (b) Use the provision at 252.209-7002, Disclosure of Ownership or 
Control by a Foreign Government, in all solicitations, including those 
subject to the procedures in FAR part 13, when access to proscribed 
information is necessary for contract performance. If the solicitation 
includes the clause at FAR 52.204-7, do not separately list the 
provision 252.209-7002 in the solicitation.

0
8. In section 209.470-4, revise paragraph (a) to read as follows:


209.470-4  Solicitation provision and contract clause.

    (a) Use the provision at 252.209-7003, Reserve Officer Training 
Corps and Military Recruiting on Campus--Representation, in all 
solicitations with institutions of higher education. If the 
solicitation includes the clause at FAR 52.204-7, do not separately 
list the provision 252.209-7003 in the solicitation.
* * * * *

PART 211--DESCRIBING AGENCY NEEDS


211.274-6  [Amended]

0
9. Amend section 211.274-6, paragraph (a)(1), by removing 
``solicitations and contracts that require'' and adding ``solicitations 
and contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that require'' in 
its place.


211.275-3  [Amended]

0
10. Amend section 211.275-3 by removing ``in solicitations and 
contracts that will require'' and adding ``in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that will require'' 
in its place.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
11. Revise section 212.301 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 
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)(1).
    (ix) Use the provision at 252.211-7006, Passive Radio Frequency 
Identification, as prescribed in 211.275-3.
    (x) Use the clause at 252.211-7007, Reporting of Government-
Furnished Property, as prescribed in 211.274-6.
    (xi) Use the provisions at 252.215-7007, Notice of Intent to 
Resolicit, and 252.215-7008, Only One Offer, as prescribed in 
215.408(3) and (4), respectively.
    (xii) 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 when prescribed 
in 219.708(b)(1)(A)(2).
    (xiii) 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.
    (xiv) Use the clause at 252.223-7008, Prohibition of Hexavalent 
Chromium, as prescribed in 223.7306.
    (xv) Use the provision at 252.225-7000, Buy American--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).
    (xvi) Use the clause at 252.225-7001, Buy American 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).
    (xvii) 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.
    (xviii) 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.
    (xix) 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.
    (xx) 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.
    (xxi) 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.
    (xxii) 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 Pub. L. 107-117 and the same restriction in 
subsequent DoD appropriations acts.
    (xxiii) 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.
    (xxiv) 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.
    (xxv) Use the provision at 252.225-7020, Trade Agreements 
Certificate, to comply with 19 U.S.C. 2501-2518 and 19 U.S.C. 3301 
note. Alternate I also implements section 886 of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
    (A) Use the basic provision as prescribed in 225.1101(5)(i),

[[Page 37985]]

    (B) Use the provision with its Alternate I as prescribed in 
225.1101(5)(ii).
    (xxvi) Use the clause at 252.225-7021, Trade Agreements to comply 
with 19 U.S.C. 2501-2518 and 19 U.S.C. 3301 note. Alternate I also 
implements section 886 of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181).
    (A) Use the basic clause as prescribed in 225.1101(6)(i).
    (B) Use the clause with its Alternate I as prescribed in 
225.1101(6)(ii).
    (C) Use the clause with its Alternate II as prescribed in 
225.1101(6)(iii).
    (xxvii) 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).
    (xxviii) 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).
    (xxix) 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 section 886 of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181).
    (xxx) 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 section 886 of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
    (xxxi) 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.
    (xxxii) 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.
    (xxxiii) 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.
    (xxxiv) Use the provision at 252.225-7035, Buy American--Free Trade 
Agreements--Balance of Payments Program Certificate, to comply with 41 
U.S.C. chapter 83 and 19 U.S.C. 3301 note. Alternates II, III, and V 
also implement section 886 of the National Defense Authorization Act 
for Fiscal Year 2008 (Pub. L. 110-181).
    (A) Use the basic provision as prescribed in 225.1101(10)(i).
    (B) Use the provision with its Alternate I as prescribed in 
225.1101(10)(ii).
    (C) Use the provision with its Alternate II as prescribed in 
225.1101(10)(iii).
    (D) Use the provision with its Alternate III as prescribed in 
225.1101(10)(iv).
    (E) Use the provision with its Alternate IV as prescribed in 
225.1101(10)(v).
    (F) Use the provision with its Alternate V as prescribed in 
225.1101(10)(vi).
    (xxxv) Use the clause at 252.225-7036, Buy American--Free (B) Trade 
Agreements--Balance of Payments Program to comply with 41 U.S.C. 
chapter 83 and 19 U.S.C. 3301 note. Alternates II, III, and V also 
implement section 886 of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181).
    (A) Use the basic clause as prescribed in 225.1101(11)(i)(A)
    (B) Use the clause with its Alternate I as prescribed in 
225.1101(11)(i)(B).
    (C) Use the clause with its Alternate II as prescribed in 
225.1101(11)(i)(A).
    (D) Use the clause with its Alternate III as prescribed in 
225.1101(11)(i)(B).
    (E) Use the clause with its Alternate IV as prescribed in 
225.1101(11)(i)(C).
    (F) Use the clause with its Alternate V as prescribed in 
225.1101(11)(i)(C).
    (xxxvi) 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).
    (xxxvii) Use the clause at 252.225-7038, Restriction on Acquisition 
of Air Circuit Breakers, as prescribed in 225.7006-4(b), to comply with 
10 U.S.C. 2534(a)(3).
    (xxxviii) 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.
    (xxxix) 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).
    (xl) Use the clause at 252.225-7043, Antiterrorism/Force Protection 
Policy for Defense Contractors Outside the United States, as prescribed 
in 225.7403-2.
    (xli) 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.
    (xlii) 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.
    (xliii) 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.
    (xliv) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, as prescribed in 227.7102-4(c).
    (xlv) 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.
    (xlvi) Use the clause at 252.232-7009, Mandatory Payment by 
Governmentwide Commercial Purchase Card, as prescribed in 232.1110.
    (xlvii) Use the clause at 252.232-7010, Levies on Contract 
Payments, as prescribed in 232.7102.
    (xlviii) Use the clause at 252.232-7011, Payments in Support of 
Emergencies and Contingency Operations, as prescribed in 232.908.
    (xlix) 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 Pub. L. 111-84.
    (l) 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 Pub. L. 108-375.
    (li) 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.
    (lii) Use the clause at 252.244-7000, Subcontracts for Commercial 
Items, as prescribed in 244.403.
    (liii) Use the clause at 252.246-7003, Notification of Potential 
Safety Issues, as prescribed in 246.371(a).
    (liv) 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.
    (lv) 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

[[Page 37986]]

comply with section 884 of Public Law 110-417.
    (lvi) Use the provision at 252.247-7022, Representation of Extent 
of Transportation by Sea, as prescribed in 247.574(a).
    (lvii) 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).
    (lviii) Use the clause at 252.247-7024, Notification of 
Transportation of Supplies by Sea, as prescribed in 247.574(c).
    (lix) 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).
    (lx) 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.
    (lxi) 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 (Public 
Law 110-417).
    (lxii) Use the clause at 252.247-7028, Application for U.S 
Government Shipping Documentation/Instructions, as prescribed in 
247.207.

PART 215--CONTRACTING BY NEGOTIATION


215.408  [Amended]

0
12. Amend section 215.408 by--
0
a. In paragraph (3), removing ``in competitive solicitations that will 
be solicited'' and adding ``in competitive solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, that will be solicited'' in its place.
0
b. In paragraph (4)(i), removing ``in competitive solicitations, unless 
an exception'' and adding ``in competitive solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, unless an exception'' in its place.

PART 216--TYPES OF CONTRACTS

0
13. Amend section 216.203-4-70, by revising paragraph (c)(2) to read as 
follows:


216.203-4-70  Additional provisions and clauses.

* * * * *
    (c) * * *
    (2) Use the provision at 252.216-7008, Economic Price Adjustment-
Wage Rates or Material Prices Controlled by a Foreign Government--
Representation, in solicitations that include the clause at 252.216-
7003, Economic Price Adjustment-Wage Rates or Material Prices 
Controlled by a Foreign Government. If the solicitation includes the 
clause at FAR 52.204-7, do not separately list the provision 252.216-
7008 in the solicitation.

PART 219--SMALL BUSINESS PROGRAMS

0
14. Revise section 219.708 to read as follows:


219.708  Contract clauses.

    (b)(1)(A) Except as provided in paragraph (b)(1)(B) of this 
section, 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)(1) In prime contracts, including 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 (DoD Contracts), and 
FAR 52.219-9, Small Business Subcontracting Plan.
    (2) However, also include in the prime contract, solely for the 
purpose of flowing the clauses down to subcontractors--
    (i) FAR clause 52.219-9, Small Business Subcontracting Plan, and 
252.219-7003; or
    (ii) When the contract will not be reported in FPDS (see FAR 4.606 
(c)(5)), 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.
    (2) In contracts with contractors that have comprehensive 
subcontracting plans approved under the test program described in 
219.702, do not use the clause at FAR 52.219-16, Liquidated Damages--
Subcontracting Plan.
    (c)(1) Do not use the clause at FAR 52.219-10, Incentive 
Subcontracting Program, in contracts with contractors that have 
comprehensive subcontracting plans approved under the test program 
described in 219.702.

PART 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
15. The authority citation for part 223 is revised to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


223.7306  [Amended]

0
16. Amend section 223.7306 by removing ``solicitations and contracts 
for supplies, maintenance and repair services, or construction'' and 
adding ``solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, that are for supplies, maintenance and repair 
services, or construction'' in its place.

PART 225--FOREIGN ACQUISITION


225.370-6  [Amended]

0
17. Amend section 225.370-6 introductory text by removing ``in all 
solicitations and contracts to be performed'' and adding ``in 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that are to be performed'' in its place.

0
18. Amend section 225.1101 by--
0
a. In paragraph (1)(i), removing ``solicitation that includes the 
clause'' and adding ``solicitation, including solicitations using FAR 
part 12 procedures for the acquisition of commercial items, that 
includes the clause'' in its place; and removing ``Balance of Payments 
Program'' and adding ``Balance of Payments Program. If the solicitation 
includes the clause at FAR 52.204-7, do not separately list the 
provision 252.225-7000 in the solicitation'' in its place;
0
b. In paragraph (1)(ii), removing ``Alternate I when the acquisition'' 
and adding ``Alternate I in solicitations, including solicitations 
using FAR part

[[Page 37987]]

12 procedures for the acquisition of commercial items, when the 
acquisition'' in its place;
0
c. In paragraph (2)(i) introductory text, removing ``in solicitations 
and contracts unless--'' and adding ``in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, unless--'' in its place;
0
d. In paragraph (2)(ii), removing ``Alternate I when the'' and adding 
``Alternate I in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, when the'' in its place;
0
e. Revising paragraphs (5)(i) through(ii);
0
f. In paragraph (6)(i) removing ``Trade Agreements, instead of the 
clause at FAR 52.225-5, Trade Agreements, if the World'' and adding 
``Trade Agreements, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, if the World'' in its place;
0
g. In paragraph (6)(ii) removing ``solicitations and contracts that 
include'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that include'' in its place;
0
h. In paragraph (6)(iii) removing ``Alternate II when the'' and adding 
``Alternate II in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, when the'' in its place;
0
i. Revising paragraph (7);
0
j. Revising paragraph (10);
0
k. In paragraph (11)(i) introductory text, removing ``in solicitations 
and contracts for the items listed at 225.401-70, including 
acquisitions of commercial items or components, when the estimated'' 
and adding ``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'' in its place;
0
l. In paragraph (11)(i)(A), removing ``Use the basic clause when'' and 
adding ``Use the basic clause in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, when'' in its place;
0
m. In paragraph (11)(i)(B), removing ``Use the clause with its 
Alternate I when'' and adding ``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'' in its place; and
0
n. In paragraph (11)(i)(C), removing ``Use the clause with its 
Alternate IV when'' and adding ``Use the clause with its Alternate IV 
in solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
when'' in its place.
    The revised text reads as follows:


225.1101  Acquisition of supplies.

* * * * *
    (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. If the solicitation includes the clause 
at FAR 52.204-7, do not separately list the provision 252.225-7020 in 
the solicitation.
    (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.
* * * * *
    (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. If the solicitation 
includes the clause at FAR 52.204-7, do not separately list the 
provision 252.225-7022 in the solicitation.
* * * * *
    (10)(i) Use the provision at 252.225-7035, Buy American--Free Trade 
Agreements--Balance of Payments Program Certificate, instead of the 
provision at FAR 52.225-4, Buy American--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--Free Trade 
Agreements--Balance of Payments Program. If the solicitation includes 
the clause at FAR 52.204-7, do not separately list the provision 
252.225-7035 in the solicitation.
    (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.
    (v) Use the provision with its Alternate IV 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 IV.
    (vi) Use the provision with its Alternate V 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 V.
* * * * *


225.1103  [Amended]

0
19. In paragraph (3) of section 225.1103, remove ``in a foreign 
country'' and add ``in a foreign country. If the solicitation includes 
the clause at FAR 52.204-7, do not separately list the provision 
252.225-7042 in the solicitation'' in its place.


225.7002-3  [Amended]

0
20. Amend section 225.7002-3 by--
0
a. In paragraph (a), removing ``contracts exceeding'' and adding 
``contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that exceed'' in 
its place; and
0
b. In paragraph (b), removing ``solicitations and contracts exceeding'' 
and adding ``solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, that exceed'' in its place.


225.7003-5  [Amended]

0
21. Amend section 225.7003-5 by--
0
a. In paragraph (a)(1) introductory text, removing ``solicitations and 
contracts that--'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR

[[Page 37988]]

part 12 procedures for the acquisition of commercial items, that--'' in 
its place;
0
b. In paragraph (a)(2) introductory text, removing ``solicitations and 
contracts that--'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that--'' in its place; and
0
c. In paragraph (b) introductory text, removing ``in solicitations--'' 
and adding ``in solicitations, including solicitations using FAR part 
12 procedures for the acquisition of commercial items,--'' in its 
place.


225.7006-4  [Amended]

0
22. Amend section 225.7006-4 by--
0
a. In paragraph (a) introductory text, removing ``in solicitations 
requiring air circuit'' and adding ``in solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, that require air circuit'' in its place; and
0
b. In paragraph (b) introductory text, removing ``solicitations and 
contracts requiring air circuit'' and adding ``solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that require air 
circuit'' in its place; and
0
c. In paragraph (b)(1), removing ``An exception applies'' and adding 
``An exception at 225.7006-2 applies'' in its place.


225.7009-5  [Amended]

0
23. Amend section 225.7009-5 introductory text by removing ``in 
solicitations and contracts, unless--'' and adding ``in solicitations 
and contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, unless--'' in its 
place.


225.7017-4  [Amended]

0
24. Amend section 225.7017-4 by--
0
a. In paragraph (a)(1) introductory text, by removing ``in 
solicitations for a contract'' and adding ``in solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, for a contract'' in its place; and
0
b. In paragraph (a)(2), removing ``resultant contract if it'' and 
adding ``resultant contract, including contracts using FAR part 12 
procedures for the acquisition of commercial items, if it'' in its 
place; and
0
c. In paragraph (b), removing ``in solicitations containing the 
clause'' and adding ``in solicitations, including solicitations using 
FAR part 12 procedures for the acquisition of commercial items, that 
contain the clause'' in its place.


225.7307  [Amended]

0
25. Amend section 225.7307 by--
0
a. In paragraph (a), removing ``solicitations and contracts for FMS'' 
and adding ``solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, that are for FMS'' in its place; and
0
b. In paragraph (b), removing ``solicitations and contracts for the 
purchase'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for the purchase'' in its 
place.


225.7402-5  [Amended]

0
26. In section 225.7402-5, amend paragraph (a) by removing 
``solicitations and contracts that authorize'' and adding 
``solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that authorize'' in its place.


225.7403-2  [Amended]

0
27. Amend section 225.7403-2 introductory text by removing 
``solicitations and contracts that require'' and adding ``solicitations 
and contracts, and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that require'' in its place.


225.7605  [Amended]

0
28. Section 225.7605 is amended by--
0
a. Removing ``Unless an exception applies'' and adding ``Unless an 
exception at 225.7603 applies'' in its place; and
0
b. Removing ``in all solicitations'' and adding ``in all solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items. If the solicitation includes the 
clause at FAR 52.204-7, do not separately list 252.225-7031 in the 
solicitation'' in its place.


225.7703-5  [Amended]

0
29. Amend section 225.7703-5 by--
0
a. In paragraph (a) introductory text, removing ``in solicitations that 
provide'' and adding ``in solicitations, including solicitations using 
FAR part 12 procedures for the acquisition of commercial items, that 
provide'' in its place;
0
b. In paragraph (b), removing ``in solicitations that include'' and 
adding ``in solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, that include'' in 
its place; and
0
c. In paragraph (c)(1) introductory text, removing ``in solicitations 
and contracts that--'' and adding ``in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, that--'' in its place.

PART 226--OTHER SOCIOECONOMIC PROGRAMS

0
30. The authority citation for part 226 is revised to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


226.104  [Amended]

0
31. Amend section 226.104 by removing ``in solicitations and contracts 
for supplies'' and adding ``in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for supplies'' in its place.

PART 227--PATENTS, DATA, AND COPYRIGHTS

0
32. The authority citation for part 227 is revised to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


227.7102-4  [Amended]

0
33. Amend section 227.7102-4 by--
0
a. In paragraph (a)(1), removing ``in all solicitations and contracts 
when'' and adding ``in all solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, when'' in its place;
0
b. In paragraph (a)(2), removing ``Alternate I in contracts for the'' 
and adding ``Alternate I in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for the'' in its place; and
0
c. In paragraph (c), removing ``in all solicitations and contracts for 
commercial items'' and adding ``in solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items'' in its 
place.


227.7103-6  [Amended]

0
34. Amend section 227.7103-6 by--
0
a. In paragraph (a), removing ``solicitations and contracts when the'' 
and adding ``solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, when the'' in its place;
0
b. In paragraph (b)(1) introductory text, removing ``Alternate I in 
research contracts when the'' and adding

[[Page 37989]]

``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'' in its place; and
0
c. In paragraph (b)(2), removing ``Alternate II in contracts for the'' 
and adding ``Alternate II in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for the'' in its place.

PART 229--TAXES


229.402-70  [Amended]

0
35. Amend section 229.402-70 by--
0
a. In paragraph (c)(2), removing ``252.229-7003, Tax Exemptions 
(Italy)'' and adding ``252.229-7003, Tax Exemptions (Italy). If the 
solicitation includes the clause at FAR 52.204-7, do not separately 
list 252.229-7012 in the solicitation'' in its place.
0
b. In paragraph (e)(2), removing ``252.229-7005, Tax Exemptions 
(Spain)'' and adding ``252.229-7005, Tax Exemptions (Spain). If the 
solicitation includes the clause at FAR 52.204-7, do not separately 
list 252.229-7013 in the solicitation.'' in its place.

PART 232--CONTRACT FINANCING

0
36. Revise section 232.908 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 acquisitions that meet the 
applicability criteria at 232.901(1). Use of this clause is in addition 
to use of either the approved Payment clause prescribed in FAR 32.908 
or the clause at FAR 52.212-4, Contract Terms and Conditions--
Commercial Items.

0
37. Revise section 232.1110 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--
    (1) Placement of orders or calls valued at or below the micro-
purchase threshold is anticipated; and
    (2) Payment by Governmentwide commercial purchase card is required 
for orders or calls valued at or below the micro-purchase threshold 
under the contract or agreement.


232.7004  [Amended]

0
38. Amend paragraph (a) of section 232.704 by removing ``solicitations 
and contracts'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items'' in its place.


232.7102  [Amended]

0
39. Amend section 232.7102 by removing ``solicitations and contracts 
other than those for micro-purchases'' and adding ``solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items'' in its place.

PART 237--SERVICE CONTRACTING


237.171-4  [Amended]

0
40. Amend section 237.171-4 by removing ``in solicitations and 
contracts for the acquisition'' and adding ``in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that are for the 
acquisition'' in its place.


237.173-5  [Amended]

0
41. Amend section 237.173-5 by removing ``solicitations and contracts 
for the provision'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for the provision'' in its 
place.

PART 243--CONTRACT MODIFICATIONS


243.205-71  [Amended]

0
42. Amend section 243.205-71 by removing ``solicitations and contracts 
estimated'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are estimated'' in its place.

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

0
43. Revise section 244.403 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.

PART 246--QUALITY ASSURANCE

0
44. The authority citation for part 246 is revised to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.


246.270-4  [Amended]

0
45. Amend section 246.270-4 by removing ``solicitations and contracts 
for the construction'' and adding ``solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, for the construction'' in its 
place.


246.371  [Amended]

0
46. Amend section 246.371, in the introductory text of paragraph (a), 
by removing ``solicitations and contracts for the acquisition of--'' 
and adding ``solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, for the acquisition of--'' in its place.

PART 247--TRANSPORTATION


247.207  [Amended]

0
47. Amend section 247.207 by--
0
a. In paragraph (1), removing ``solicitations and contracts for 
carriage'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for carriage'' in its place.
0
b. In paragraph (2), removing ``Documentation/Instructions, when 
shipping'' and adding ``Documentation/Instructions in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, when shipping'' in 
its place.

0
48. Revise section 247.571 to read as follows:


247.571  Definitions.

    As used in this subpart--
    (a) Components, foreign flag vessel, ocean transportation, 
supplies, and U.S.-flag vessel have the meaning given in the clause at 
252.247-7023, Transportation of Supplies by Sea.
    (b) Reflagging or repair work 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 have the meaning given in 
the provision at 252.247-7026, Evaluation Preference for

[[Page 37990]]

Use of Domestic Shipyards--Applicable to Acquisition of Carriage by 
Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade.


247.572  [Amended]

0
49. Amend section 247.572 by--
0
a. In paragraph (a) introductory text, removing ``DoD contractors must 
transport'' and adding ``In accordance with 10 U.S.C. 2631(a), DoD 
contractors must transport'' in its place; and
0
b. In paragraph (c), adding introductory text.
    The added text reads as follows:


247.572  Policy.

* * * * *
    (c) In accordance with 10 U.S.C. 2631(b)--
* * * * *

0
50. Amend section 247.574 by--
0
a. Revising paragraph (a) and paragraph (b)(1);
0
b. In paragraph (c), removing ``in all contracts for which'' and adding 
``in all contracts, including contracts using FAR part 12 procedures 
for the acquisition of commercial items, for which'' in its place;
0
c. In paragraph (d), removing ``solicitations and contracts for the use 
of'' and adding ``solicitations and contracts, including time charter 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for the use of'' in its 
place; and removing ``in accordance with 247.572(c)'' and adding ``in 
accordance with 247.572(c)(2)'' in its place;
0
d. In paragraph (e), removing ``in solicitations that require'' and 
adding ``in solicitations, including solicitations using FAR part 12 
procedures for the acquisition of commercial items, that require'' in 
its place; and
0
e. In paragraph (f), removing ``solicitations and contracts for the 
charter of'' and adding ``solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that are for the charter of'' in its 
place.
    The revised text reads as follows:


247.574  Solicitation provisions and contract clauses.

    (a)(1) 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--
    (i) Those for direct purchase of ocean transportation services; or
    (ii) Those with an anticipated value at or below the simplified 
acquisition threshold.
    (2) If the solicitation includes the clause at FAR 52.204-7, do not 
separately list 252.247-7022 in the solicitation.
    (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.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.203-7000  [Amended]

0
51. Amend the introductory text of section 252.203-7000 by removing 
``203.171-4'' and adding ``203.171-4(a)'' in its place.


252.211-7003  [Amended]

0
52. Amend section 252.211-7003 by--
0
a. In introductory text, removing ``211.274-6(a)'' and adding 
``211.274-6(a)(1)'' in its place; and removing the clause date ``(JUN 
2011)'' and adding ``(JUN 2013)'' in its place; and
0
b. In paragraph (g), removing ``paragraph (g), in the applicable 
subcontract(s)'' and adding ``paragraph (g), in the applicable 
subcontract(s), including subcontracts for commercial items'' in its 
place.

0
53. Remove and reserve section 252.212-7000.
0
54. Remove and reserve section 252.212-7001.


252.223-7008  [Amended]

0
55. Amend section 252.223-7008 by--
0
a. Removing the clause date ``(MAY 2011)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (d), removing ``in all subcontracts for supplies,'' and 
adding ``in all subcontracts, including subcontracts for commercial 
items, that are for supplies,'' in its place.


252.225-7009  [Amended]

0
56. Amend section 252.225-7009 by--
0
a. Removing the clause date ``(MAR 2013)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (e), removing ``substance of this clause in 
subcontracts for items'' and adding ``substance of this clause in 
subcontracts, including subcontracts for commercial items, that are for 
items'' in its place.


252.225-7039  [Amended]

0
57. Amend section 252.225-7039 by--
0
a. Removing the clause date ``(JUN 2012)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (e), removing ``in all subcontracts that will be 
performed'' and adding ``in all subcontracts, including subcontracts 
for commercial items, that will be performed'' in its place.


252.227-7013  [Amended]

0
58. Amend section 252.227-7013 by--
0
a. Removing the clause date ``(MAY 2013)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (k)(2), removing ``contractual instrument, and 
require'' and adding ``contractual instrument, including subcontracts 
or other contractual instruments for commercial items, and require'' in 
its place.


252.227-7015  [Amended]

0
59. Amend section 252.227-7015 by--
0
a. Removing the clause date ``(MAY 2013)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (e)(2), removing ``other contractual instrument, and 
require its subcontractors'' and adding ``other contractual instrument, 
including subcontracts and other contractual instruments for commercial 
items, and require its subcontractors'' in its place.


0
60. Amend section 252.227-7037 by--
0
a. Revising the introductory text;
0
b. Removing the clause date ``(JUN 2012)'' and adding ``(JUN 2013)'' in 
its place; and
0
c. In paragraph (l), removing ``contractual instruments with its 
subcontractors'' and adding ``contractual instruments, including 
subcontracts and other contractual instruments for commercial items, 
with its subcontractors'' in its place.
    The revision reads as follows:


252.227-7037  Validation of restrictive markings on technical data.

    As prescribed in 227.7102-4(c), 227.7103-6(e)(3), 27.7104(e)(5), or 
227.7203-6(f), use the following clause:
* * * * *


252.236-7013  [Amended]


0
61. Amend section 252.236-7013 by--
0
a. Removing the clause date ``(JAN 2009)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (c), removing ``acquisition of steel as a construction 
material'' and adding ``acquisition of steel as a construction 
material, including subcontracts for the

[[Page 37991]]

acquisition of commercial items'' in its place.


252.237-7010  [Amended]


0
62. Amend section 252.237-7010 by--
0
a. Removing the clause date ``(NOV 2010)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (c), removing ``in all subcontracts that may require'' 
and adding ``in all subcontracts, including subcontracts for commercial 
items, that may require'' in its place.


252.237-7019  [Amended]


0
63. Amend section 252.237-7019 by--
0
a. Removing the clause date ``(SEP 2006)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (c), removing ``in all subcontracts that may require'' 
and adding ``in all subcontracts, including subcontracts for commercial 
items, that may require'' in its place.
0
64. Revise section 252.244-7000 to read as follows:


252.244-7000  Subcontracts for Commercial Items.

    As prescribed in 244.403, use the following clause: SUBCONTRACTS 
FOR COMMERCIAL ITEMS (JUN 2013)

    (a) The Contractor is not required to flow down the terms of any 
Defense Federal Acquisition Regulation Supplement (DFARS) 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 under this 
contract, including subcontracts for the acquisition of commercial 
items.

    (End of clause)


252.246-7003  [Amended]

0
65. Amend section 252.246-7003 by--
0
a. Removing the clause date ``(JAN 2007)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (f)(2) introductory text, removing ``For those 
subcontracts, described in'' and adding ``For those subcontracts, 
including subcontracts for commercial items, described in'' in its 
place.


252.247-7003  [Amended]

0
66. Amend section 252.247-7003 by--
0
a. Removing the clause date ``(SEP 2010)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (c), removing ``in all subcontracts with motor 
carriers'' and adding ``in all subcontracts, including subcontracts for 
commercial items, with motor carriers'' in its place.


252.247-7023  [Amended]

0
67. Amend section 252.247-7023 by--
0
a. Removing the clause date ``(MAY 2002)'' and adding ``(JUN 2013)'' in 
its place; and
0
b. In paragraph (h) introductory text, removing ``of this clause, the 
Contractor shall'' and adding ``of this clause, including subcontracts 
for commercial items, the Contractor shall'' in its place.

[FR Doc. 2013-15030 Filed 6-24-13; 8:45 am]
BILLING CODE 5001-06-P