Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Provision Regarding Availability of Specifications and Standards Not Listed in the Acquisition Streamlining and Standardization Information System (DFARS Case 2019-D007), 25192-25194 [2019-11310]
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25192
Federal Register / Vol. 84, No. 105 / Friday, May 31, 2019 / Rules and Regulations
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approved in accordance with 10 U.S.C.
2304(f).
The objective of this final rule is to
ensure that a justification is executed
and approved prior to including brand
name or equal descriptions, or
proprietary specifications or standards,
in a solicitation that uses simplified
procedures for certain commercial items
or negotiated acquisition or sealed
bidding procedures.
No public comments were received in
response to the initial regulatory
flexibility analysis.
The Federal Procurement Data System
(FPDS) does not collect data on
contracts awarded using brand name or
equal descriptions or contracts that were
competed and included proprietary
specifications or standards. Currently,
brand name or equal descriptions are
procured through competitive
procedures, but FPDS does not identify
the subset of contracts that were
awarded competitively using such
descriptions.
FPDS can identify the number of
offers received in response to a
solicitation. This subset can help DoD
better identify the number of
competitive requirements that may have
used such descriptions, specifications,
or standards, but only received one offer
for various reasons.
As a result, FPDS identifies that there
were 127,536 contracts and orders
competed and awarded in FY 2017 that
only received one offer. Of the 127,536
new awards, 76,179(60%) of these
actions were awarded to 9,823 unique
small business entities. The proposed
rule applies to all entities who do
business with the Federal Government
and is not expected to have a significant
impact on these entities, regardless of
business size.
This rule does not include any new
reporting, recordkeeping, or other
compliance requirements for small
businesses.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known significant
alternative approaches to the rule that
would meet the proposed objectives.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
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List of Subjects in 48 CFR Parts 206,
211, and 213
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 206, 211, and
213 are amended as follows:
■ 1. The authority citation for 48 CFR
parts 206, 211, and 213 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 206—COMPETITION
REQUIREMENTS
211.170 Use of proprietary specifications
or standards.
A justification and approval is
required to use proprietary
specifications and standards—
(1) When using sealed bidding or
negotiated acquisition procedures (see
206.302–1(S–70) for justification
requirements); or,
(2) When using the simplified
procedures for certain commercial items
at FAR 13.5 (see 213.501(a)(ii) for
justification requirements).
PART 213—SIMPLIFIED ACQUISITION
PROCEDURES
■
5. Section 213.501 is amended by—
a. Redesignating paragraph (a) as
paragraph (a)(i); and
■ b. Adding new paragraph (a)(ii) to
read as follows:
206.302–1 Only one responsible source
and no other supplies or services will
satisfy agency requirements.
213.501 Special documentation
requirements.
■
■
2. In section 206.302–1, paragraphs (c)
and (S–70) are added to read as follows:
*
*
*
*
*
(c) Application for brand-name
descriptions.
(2) Notwithstanding FAR 6.302–
1(c)(2), in accordance with section
888(a) of the National Defense
Authorization Act for Fiscal Year 2017
(Pub. L. 114–328), the justification and
approval addressed in FAR 6.303 is
required in order to use brand name or
equal descriptions.
*
*
*
*
*
(S–70) Application for proprietary
specifications or standards. In
accordance with section 888(a) of the
National Defense Authorization Act for
Fiscal Year 2017 (Pub. L. 114–328), the
justification and approval addressed in
FAR 6.303 is required in order to use
proprietary specifications and
standards.
*
*
*
*
*
PART 211—DESCRIBING AGENCY
NEEDS
3. Section 211.104 is added to read as
follows:
■
211.104 Use of brand name or equal
purchase descriptions.
A justification and approval is
required to use brand name or equal
purchase descriptions—
(1) When using sealed bidding or
negotiated acquisition procedures (see
206.302–1(c)(2) for justification
requirements); or
(2) When using the simplified
procedures for certain commercial items
at FAR 13.5 (see 213.501(a)(ii) for
justification requirement).
■ 4. Section 211.170 is added to read as
follows:
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(a) * * *
(ii) In accordance with section 888(a)
of the National Defense Authorization
Act for Fiscal Year 2017 (Pub. L. 114–
328), the justification and approval
addressed in FAR 13.501(a) is required
in order to use brand name or equal
descriptions or proprietary
specifications and standards.
[FR Doc. 2019–11305 Filed 5–30–19; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 211 and 252
[Docket DARS–2019–0022]
RIN 0750–AK42
Defense Federal Acquisition
Regulation Supplement: Repeal of
DFARS Provision Regarding
Availability of Specifications and
Standards Not Listed in the
Acquisition Streamlining and
Standardization Information System
(DFARS Case 2019–D007)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to remove a clause that is no
longer necessary.
DATES: Effective May 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Carrie Moore, telephone 571–372–6093.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to
remove DFARS clause 252.211–7001,
Availability of Specifications,
Standards, and Data Item Descriptions
Not Listed in the Acquisition
Streamlining and Standardization
Information System (ASSIST), and
Plans, Drawings, and Other Pertinent
Documents, and the associated clause
prescription at DFARS 211.204(c)(i).
When solicitations identify
requirements documents, FAR 11.201
requires the documents to be furnished
with the solicitation or the solicitation
to include specific instructions for
obtaining or examining such
documents.
DFARS provision 252.211–011 is
included in solicitations that require the
use of specifications, standards, and
data item descriptions that are not listed
in the ASSIST database. The provision
provides offerors with the name and
address of the activity from which the
offeror can obtain a copy of the
applicable documents, upon request. As
implemented, the clause was intended
for use in situations where the
documents were not attached to the
solicitation and an offeror could request
a copy of the documents by mail.
DFARS provision 252.211–7002,
Examination of Specifications,
Standards, Plans, Drawings, Data Item
Descriptions and Other Pertinent
Documents, is also available for use in
solicitations that require the use of
specifications, standards, and data item
descriptions not listed in the ASSIST
database. The text of DFARS provision
252.211–7002 notifies offerors that the
documents are unavailable for
distribution (as an attachment to the
solicitation) and includes a blank, to be
completed by the contracting officer, to
provide a physical address, email
address, or name and phone number
where the documents can be requested
and/or obtained. It is no longer
necessary to have two different
provisions to communicate how or
where an offeror can obtain or view
documents associated with a
solicitation. As such, DFARS provision
252.211–7001 is no longer necessary
and can be removed.
The removal of this DFARS text
supports a recommendation from the
DoD Regulatory Reform Task Force. On
February 24, 2017, the President signed
Executive Order (E.O.) 13777,
‘‘Enforcing the Regulatory Reform
Agenda,’’ which established a Federal
policy ‘‘to alleviate unnecessary
regulatory burdens’’ on the American
people. In accordance with E.O. 13777,
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DoD established a Regulatory Reform
Task Force to review and validate DoD
regulations, including the DFARS. A
public notice of the establishment of the
DFARS Subgroup to the DoD Regulatory
Reform Task Force, for the purpose of
reviewing DFARS provisions and
clauses, was published in the Federal
Register at 82 FR 35741 on August 1,
2017, and requested public input. No
public comments were received on
these provisions. The DoD Task Force
reviewed the requirements of DFARS
provision 252.211–7001, Availability of
Specifications, Standards, and Data Item
Descriptions Not Listed in the
Acquisition Streamlining and
Standardization Information System
(ASSIST), and Plans, Drawings, and
Other Pertinent Documents, and
determined that the DFARS coverage
was unnecessary and recommended
removal.
merely removing an obsolete clause
from the DFARS.
II. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
V. Executive Order 13771
This rule is not subject to E.O. 13771,
because this rule is not a significant
regulatory action under E.O. 12866.
This rule only removes obsolete
DFARS provision 252.211–7001,
Availability of Specifications,
Standards, and Data Item Descriptions
Not Listed in the Acquisition
Streamlining and Standardization
Information System (ASSIST), and
Plans, Drawings, and Other Pertinent
Documents. The rule does not impose
any new requirements on contracts at or
below the simplified acquisition
threshold and for commercial items,
including commercially available offthe-shelf items.
III. Publication of This Final Rule for
Public Comment Is Not Required by
Statute
The statute that applies to the
publication of the Federal Acquisition
Regulation (FAR) is Office of Federal
Procurement Policy statute (codified at
title 41 of the United States Code).
Specifically, 41 U.S.C. 1707(a)(1)
requires that a procurement policy,
regulation, procedure or form (including
an amendment or modification thereof)
must be published for public comment
if it relates to the expenditure of
appropriated funds, and has either a
significant effect beyond the internal
operating procedures of the agency
issuing the policy, regulation,
procedure, or form, or has a significant
cost or administrative impact on
contractors or offerors. This final rule is
not required to be published for public
comment, because DoD is not issuing a
new regulation; rather, this rule is
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IV. Executive Orders 12866 and 13563
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.
VI. Regulatory Flexibility Act
Because a notice of proposed
rulemaking and an opportunity for
public comment are not required to be
given for this rule under 41 U.S.C.
1707(a)(1) (see section III. of this
preamble), the analytical requirements
of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) are not applicable.
Accordingly, no regulatory flexibility
analysis is required, and none has been
prepared.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 211 and
252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 211 and 252
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 211 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 211—DESCRIBING AGENCY
NEED
2. Revise section 211.204 to read as
follows:
■
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Federal Register / Vol. 84, No. 105 / Friday, May 31, 2019 / Rules and Regulations
211.204 Solicitation provisions and
contract clauses.
(c) When contract performance
requires use of specifications, standards,
and data item descriptions that are not
listed in the Acquisition Streamlining
and Standardization Information System
database, use a provision, as
appropriate, substantially the same as
252.211–7002, Availability for
Examination of Specifications,
Standards, Plans, Drawings, Data Item
Descriptions, and Other Pertinent
Documents.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
reporting information on protests
involving the same contract award or
proposed award that have been filed at
both the Government Accountability
Office and the United States Court of
Federal Claims.
DEPARTMENT OF DEFENSE
List of Subjects in 48 CFR Parts 215 and
233
[Docket DARS–2019–0023]
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 215 and 233
are amended as follows:
■
1. The authority citations for 48 CFR
parts 215 and 233 continue to read as
follows:
[FR Doc. 2019–11310 Filed 5–30–19; 8:45 am]
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
252.211–7001
■
[Removed and Reserved]
3. Remove and reserve section
252.211–7001.
BILLING CODE 5001–06–P
PART 215—CONTRACTING BY
NEGOTIATIONS
DEPARTMENT OF DEFENSE
2. Section 215.406–2 is added to read
as follows:
■
Defense Acquisition Regulations
System
215.406–2 Certificate of Current Cost or
Pricing Data.
48 CFR Parts 215 and 233
See PGI 215.406–2 for additional
information and guidance on
Certificates of Current Cost or Pricing
Data.
[Docket DARS–2019–0001]
Defense Federal Acquisition
Regulation Supplement: Technical
Amendments
PART 233—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
3. Section 233.171 is added to read as
follows:
■
DoD is making technical
amendments to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to provide needed editorial
changes.
SUMMARY:
DATES:
Effective May 31, 2019.
Ms.
Jennifer L. Hawes, Defense Acquisition
Regulations System,
OUSD(A&S)DPC(DARS), Room 3B941,
3060 Defense Pentagon, Washington, DC
20301–3060. Telephone 571–372–6115;
facsimile 571–372–6094.
SUPPLEMENTARY INFORMATION: This final
rule amends the DFARS as follows:
1. Provides direction to contracting
officers at DFARS 215.406–2 to see
DFARS Procedures, Guidance, and
Information (PGI) 215.406–2 for
additional information and guidance on
Certificates of Current Cost or Pricing
Data.
2. Provides direction to contracting
officers at DFARS 233.171 to follow the
procedures at DFARS PGI 233.171 for
FOR FURTHER INFORMATION CONTACT:
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233.171 Reporting requirement for
protests of solicitations or awards.
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Follow the procedures at PGI 233.171
for reporting information on protests
involving the same contract award or
proposed award that have been filed at
both the Government Accountability
Office and the United States Court of
Federal Claims.
[FR Doc. 2019–11418 Filed 5–30–19; 8:45 am]
BILLING CODE 5001–06–P
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Defense Acquisition Regulations
System
48 CFR Parts 247 and 252
RIN 0750–AK64
Defense Federal Acquisition
Regulation Supplement: Repeal of
DFARS Clause ‘‘Ordering Limitation’’
(DFARS Case 2019–D026)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to remove a clause that is no
longer necessary.
DATES: Effective: May 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Carrie Moore, telephone 571–372–6093.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD is amending the DFARS to
remove DFARS clause 252.247–7012,
Ordering Limitation, and the associated
prescription at DFARS 247.271–3(g).
This DFARS clause is included in
solicitations and contract when an
indefinite-delivery contract for the
preparation of personal property for
movement or storage, or for performance
of intra-city or intra-area movement, is
contemplated. The clause advises a
contractor of the manner in which the
Government will place orders for
requisite supplies and services in
consideration of the contractor’s
guaranteed maximum daily capacity.
Federal Acquisition Regulation (FAR)
clause 52.216–19, Ordering Limitations,
is also included in solicitations and
contracts for indefinite-delivery
contracts and identifies: The minimum
and maximum order quantities or
values; a limitation on ordering, within
a specified number of days, a total
amount or quantity that exceeds the
maximum order quantities or values;
and, the terms and conditions for
placing, accepting, or refusing orders
that exceed the maximum ordering
limitations identified in the clause.
Upon review of the DFARS and FAR
clause and based on current
transportation practices, DoD
determined that the FAR clause
adequately addresses the necessary
terms and conditions on minimum and
maximum ordering limitations for the
preparation of personal property for
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Agencies
[Federal Register Volume 84, Number 105 (Friday, May 31, 2019)]
[Rules and Regulations]
[Pages 25192-25194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11310]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 211 and 252
[Docket DARS-2019-0022]
RIN 0750-AK42
Defense Federal Acquisition Regulation Supplement: Repeal of
DFARS Provision Regarding Availability of Specifications and Standards
Not Listed in the Acquisition Streamlining and Standardization
Information System (DFARS Case 2019-D007)
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 remove a clause that is no
longer necessary.
DATES: Effective May 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.
[[Page 25193]]
SUPPLEMENTARY INFORMATION:
I. Background
DoD is amending the DFARS to remove DFARS clause 252.211-7001,
Availability of Specifications, Standards, and Data Item Descriptions
Not Listed in the Acquisition Streamlining and Standardization
Information System (ASSIST), and Plans, Drawings, and Other Pertinent
Documents, and the associated clause prescription at DFARS
211.204(c)(i). When solicitations identify requirements documents, FAR
11.201 requires the documents to be furnished with the solicitation or
the solicitation to include specific instructions for obtaining or
examining such documents.
DFARS provision 252.211-011 is included in solicitations that
require the use of specifications, standards, and data item
descriptions that are not listed in the ASSIST database. The provision
provides offerors with the name and address of the activity from which
the offeror can obtain a copy of the applicable documents, upon
request. As implemented, the clause was intended for use in situations
where the documents were not attached to the solicitation and an
offeror could request a copy of the documents by mail.
DFARS provision 252.211-7002, Examination of Specifications,
Standards, Plans, Drawings, Data Item Descriptions and Other Pertinent
Documents, is also available for use in solicitations that require the
use of specifications, standards, and data item descriptions not listed
in the ASSIST database. The text of DFARS provision 252.211-7002
notifies offerors that the documents are unavailable for distribution
(as an attachment to the solicitation) and includes a blank, to be
completed by the contracting officer, to provide a physical address,
email address, or name and phone number where the documents can be
requested and/or obtained. It is no longer necessary to have two
different provisions to communicate how or where an offeror can obtain
or view documents associated with a solicitation. As such, DFARS
provision 252.211-7001 is no longer necessary and can be removed.
The removal of this DFARS text supports a recommendation from the
DoD Regulatory Reform Task Force. On February 24, 2017, the President
signed Executive Order (E.O.) 13777, ``Enforcing the Regulatory Reform
Agenda,'' which established a Federal policy ``to alleviate unnecessary
regulatory burdens'' on the American people. In accordance with E.O.
13777, DoD established a Regulatory Reform Task Force to review and
validate DoD regulations, including the DFARS. A public notice of the
establishment of the DFARS Subgroup to the DoD Regulatory Reform Task
Force, for the purpose of reviewing DFARS provisions and clauses, was
published in the Federal Register at 82 FR 35741 on August 1, 2017, and
requested public input. No public comments were received on these
provisions. The DoD Task Force reviewed the requirements of DFARS
provision 252.211-7001, Availability of Specifications, Standards, and
Data Item Descriptions Not Listed in the Acquisition Streamlining and
Standardization Information System (ASSIST), and Plans, Drawings, and
Other Pertinent Documents, and determined that the DFARS coverage was
unnecessary and recommended removal.
II. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule only removes obsolete DFARS provision 252.211-7001,
Availability of Specifications, Standards, and Data Item Descriptions
Not Listed in the Acquisition Streamlining and Standardization
Information System (ASSIST), and Plans, Drawings, and Other Pertinent
Documents. The rule does not impose any new requirements on contracts
at or below the simplified acquisition threshold and for commercial
items, including commercially available off-the-shelf items.
III. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is Office of Federal Procurement Policy
statute (codified at title 41 of the United States Code). Specifically,
41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation,
procedure or form (including an amendment or modification thereof) must
be published for public comment if it relates to the expenditure of
appropriated funds, and has either a significant effect beyond the
internal operating procedures of the agency issuing the policy,
regulation, procedure, or form, or has a significant cost or
administrative impact on contractors or offerors. This final rule is
not required to be published for public comment, because DoD is not
issuing a new regulation; rather, this rule is merely removing an
obsolete clause from the DFARS.
IV. Executive Orders 12866 and 13563
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.
V. Executive Order 13771
This rule is not subject to E.O. 13771, because this rule is not a
significant regulatory action under E.O. 12866.
VI. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
VII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 211 and 252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 211 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 211 and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 211--DESCRIBING AGENCY NEED
0
2. Revise section 211.204 to read as follows:
[[Page 25194]]
211.204 Solicitation provisions and contract clauses.
(c) When contract performance requires use of specifications,
standards, and data item descriptions that are not listed in the
Acquisition Streamlining and Standardization Information System
database, use a provision, as appropriate, substantially the same as
252.211-7002, Availability for Examination of Specifications,
Standards, Plans, Drawings, Data Item Descriptions, and Other Pertinent
Documents.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.211-7001 [Removed and Reserved]
0
3. Remove and reserve section 252.211-7001.
[FR Doc. 2019-11310 Filed 5-30-19; 8:45 am]
BILLING CODE 5001-06-P