Defense Federal Acquisition Regulation Supplement: Inapplicability of Additional Defense-Unique Laws and Certain Non-Statutory DFARS Clauses to Commercial Item Contracts (DFARS Case 2018-D074), 80468-80472 [2023-25160]
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules
DEPARTMENT OF DEFENSE
I. Background
Defense Acquisition Regulations
System
DoD is proposing to amend the
DFARS to implement paragraphs (b) and
(c) of section 849 of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2018 (Pub. L. 115–91).
Section 849 paragraph (b) requires that
DoD review the DFARS and propose
revisions to eliminate certain contract
clause requirements applicable to
Federal Acquisition Regulation (FAR)
part 12 commercial product and
commercial service acquisitions, except
for regulations required by law or
Executive order, unless the Secretary of
Defense determines that there is a
specific reason not to eliminate the
regulation. Section 849 paragraph (c)
requires that DoD review the DFARS
and propose revisions to eliminate
certain contract clause requirements
applicable to commercially available
off-the-shelf (COTS) item subcontracts,
except for regulations required by law or
Executive order, unless the Secretary of
Defense determines that there is a
specific reason not to eliminate the
regulation.
DoD also proposes to amend the
DFARS to implement paragraph (a) of
section 837 of the NDAA for FY 2019
(Pub. L. 115–232). Section 837
paragraph (a) revises 10 U.S.C.
2375(b)(2), redesignated as 10 U.S.C.
3452(b)(2), by deleting the date ‘‘January
1, 2015’’ and adding the date ‘‘October
13, 1994’’ (the date of the Federal
Acquisition Streamlining Act (FASA) of
1994). See companion DFARS case
2017–D010 proposed rule, published in
the Federal Register at 83 FR 30646 on
June 29, 2018, which examined
commercial product and commercial
service applicability for DoD-unique
statutes and associated contract clauses
issued on or after January 1, 2015. This
proposed rule under DFARS Case 2018–
D074 implements the section 837(a)
change to 10 U.S.C. 3452(b)(2) to extend
the required review of applicability of
provisions of law or contract clauses to
prime contracts for commercial
products and commercial services
enacted after October 13, 1994.
Paragraphs (c)(2) and (d)(2) of 10 U.S.C.
3452 contain similar requirements for
subcontracts for commercial products
and commercial services, and contracts
for COTS items; however, the date of
October 13, 1994, is not repeated in
these sections. Following the precedent
set in DFARS Case 2017–D010, for this
proposed rule DoD has interpreted the
date of October 13, 1994, as equally
applicable to all three paragraphs, (b)(2),
(c)(2), and (d)(2), since all three
paragraphs are inter-related.
48 CFR Parts 203, 204, 212, and 215
[Docket DARS–2023–0043; Req No. DARS–
2024–00011–FR]
RIN 0750–AK33
Defense Federal Acquisition
Regulation Supplement: Inapplicability
of Additional Defense-Unique Laws
and Certain Non-Statutory DFARS
Clauses to Commercial Item Contracts
(DFARS Case 2018–D074)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement sections of the National
Defense Authorization Acts for Fiscal
Years 2018 and 2019 regarding
applicability of certain solicitation
provisions and contract clauses to
contracts and subcontracts for
commercial products, commercial
services, and commercially available
off-the-shelf items.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
January 16, 2024, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2018–D074,
using either of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2018–D074’’. Select
‘‘Comment’’ and follow the instructions
to submit a comment. Please include
‘‘DFARS Case 2018–D074’’ on any
attached documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D074 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT: Ms.
Jeanette Snyder, telephone 703–508–
7524.
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SUMMARY:
SUPPLEMENTARY INFORMATION:
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It should be noted that a clause that
is inapplicable to a contract for
commercial products is also
inapplicable to a contract for COTS
items, which are commercial products,
but a clause that is applicable to a
contract for commercial products may
be inapplicable to a contract for COTS
items. The reason for this distinction is
because a COTS item, while a subset of
commercial products, is unique in that
it is offered to the Government without
modification and in the same form in
which it is sold in the commercial
marketplace.
II. Discussion and Analysis
DoD identified the DFARS solicitation
provisions and contract clauses
published as interim or final rules after
October 13, 1994, excluding those
reviewed under DFARS case 2017–
D010, and determined whether the
provisions and clauses were based on
statute, Executive order, or policy. New
interim or final rules published after the
publication of DFARS case 2017–D010
on June 29, 2018, were also identified
and evaluated under this proposed rule.
Provisions and clauses listed at DFARS
section 212.301 as applicable to the
acquisition of commercial products and
commercial services were included in
the review.
The proposed rule adds to the list of
inapplicable provisions and clauses at
DFARS 212.370, Inapplicability of
Certain Provisions and Clauses to
Contracts and Subcontracts for the
Acquisition of Commercial Products,
Commercial Services, and Commercially
Available Off-the-shelf Items, two
provisions and one clause that are
removed from paragraph (f) at DFARS
212.301, Solicitation Provisions and
Contract Clauses for the Acquisition of
Commercial Products and Commercial
Services. These provisions and clause
will no longer be applicable to contracts
and subcontracts for the acquisition of
commercial products, commercial
services, and COTS items:
• DFARS 252.203–7003, Agency
Office of the Inspector General.
• DFARS 252.203–7005,
Representation Relating to
Compensation of Former DoD Officials.
• DFARS 252.215–7007, Notice of
Intent to Resolicit.
The proposed rule updates the text at
DFARS 212.371, Inapplicability of
Certain Provisions and Clauses to
Contracts for the Acquisition of
Commercially Available Off-the-shelf
Items, to conform to the change at 10
U.S.C. 3452(b)(2) by replacing the date
of January 1, 2015, with October 13,
1994. In addition, two provisions and
two clauses, listed at DFARS 212.301,
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are included on the list at DFARS
212.371. This means that although these
provisions and clauses are applicable to
contracts for the acquisition of
commercial products and commercial
services, they are not applicable to
contracts for the acquisition of COTS
items:
• 252.204–7008, Compliance with
Safeguarding Covered Defense
Information Controls.
• 252.204–7019, Notice of NIST SP
800–171 DoD Assessment
Requirements.
• 252.204–7020, NIST SP 800–171
DoD Assessment Requirements.
• 252.204–7021, Cybersecurity
Maturity Model Certification
Requirements.
The proposed rule revises the
following prescriptions for two
provisions and one clause to remove the
requirement to include the provisions
and clause in solicitations using FAR
part 12 procedures for the acquisition of
commercial products and commercial
services:
• The prescription at DFARS
203.171–4(b) for the provision at DFARS
252.203–7005, Representation Relating
to Compensation of Former DoD
Officials.
• The prescription at DFARS
203.1004(a) for the clause at DFARS
252.203–7003, Agency Office of the
Inspector General.
• The prescription at DFARS
215.371–6, for the provision at DFARS
252.215–7007, Notice of Intent to
Resolicit.
DFARS 204.7403(b) is amended to
add the phrase ‘‘that involve litigation
support services’’ to clarify the
application of the clause at 252.204–
7015, Notice of Authorized Disclosure
of Information for Litigation Support. At
DFARS 212.301, the list of provisions
and clauses under paragraph (f) is
amended to add statutory references or
expand on the existing references cited
for several clauses and provisions.
Section 212.504, Applicability of
Certain Laws to Subcontracts for the
Acquisition of Commercial Products
and Commercial Services, is amended to
remove the reference to 10 U.S.C. 4871,
Reporting Requirement Regarding
Dealings with Terrorist Countries,
which is obsolete. The reporting
requirement expired on September 30,
1996.
For this proposed rule, DoD evaluated
solicitation provisions or contract
clauses in relation to 10 U.S.C. 3452
(e)(1), (e)(2), and (e)(3), i.e., those that
implement a statute that provides for
criminal or civil penalties, implement
10 U.S.C. 4862 or 4863, or implement
statutes that specifically referred to 10
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U.S.C. 3452 and provided for
applicability to contracts for commercial
products and commercial services. DoD
also identified pre-FASA provisions and
clauses. A list of those provisions and
clauses follows this paragraph. No
provisions or clauses were identified as
implementing statutes that specifically
referred to 10 U.S.C. 3452.
The following provisions and clauses
implement statutes that provide for
criminal or civil penalties:
• 252.203–7000, Requirements
Relating to Compensation of Former
DoD Officials.
• 252.203–7002, Requirement to
Inform Employees of Whistleblower
Rights.
• 252.246–7007, Contractor
Counterfeit Electronic Part Detection
and Avoidance System. (Applies to
subcontracts.)
• 252.246–7008, Sources of Electronic
Parts.
• 252.247–7027, Riding Gang Member
Requirements.
The following provisions and clauses
implement 10 U.S.C. 4862 or 4863:
• 252.225–7006, Acquisition of the
American Flag.
• 252.225–7008, Restriction on
Acquisition of Specialty Metals.
• 252.225–7009, Restriction on
Acquisition of Certain Articles
Containing Specialty Metals.
• 252.225–7010, Commercial
Derivative Military Article-Specialty
Metals Compliance Certificate.
• 252.225–7012, Preference for
Certain Domestic Commodities.
• 252.225–7015, Restriction on
Acquisition of Hand or Measuring
Tools.
• 252.225–7029, Acquisition of
Uniform Components for Afghan
Military or Afghan National Police.
The following clauses existed prior to
FASA (i.e., before October 14, 1994).
• 252.205–7000, Provision of
Information to Cooperative Agreement
Holders.
• 252.219–7003, Small Business
Subcontracting Plan (DoD Contracts).
• 252.225–7001, Buy American and
Balance of Payments Program.
• 252.247–7023, Transportation of
Supplies by Sea.
• 252.247–7025, Reflagging or Repair
Work.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT), for Commercial
Products, Including Commercially
Available Off-the-Shelf (COTS) Items,
and for Commercial Services
This proposed rule does not create
any new solicitation provisions or
contract clauses. However, the proposed
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rule proposes to change to the
applicability of the following provisions
and clause by making them inapplicable
to contracts and subcontracts for the
acquisition of commercial products,
commercial services, and COTS items:
(1) 252.203–7003, Agency Office of the
Inspector General; (2) 252.203–7005,
Representation Relating to
Compensation of Former DoD Officials;
and (3) 252.215–7007, Notice of Intent
to Resolicit.
IV. Expected Impact of the Proposed
Rule
This proposed rule, when finalized,
could impact any large or small
business that is awarded a commercial
contract by DoD. The proposed rule
does not add any new solicitation
provisions or contract clauses. Rather,
there may be a reduction in burden on
contractors by making two solicitation
provisions and one contract clause no
longer applicable to solicitations and
contracts for commercial products,
commercial services, and COTS items.
V. 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, as amended.
VI. Regulatory Flexibility Act
DoD does not expect this proposed
rule, when finalized, to have a
significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
However, an initial regulatory flexibility
analysis has been performed and is
summarized as follows:
DoD is proposing to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement
sections of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2018 and the NDAA for FY
2019 regarding applicability of certain
solicitation provisions and contract
clauses to contracts and subcontracts for
commercial products, commercial
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services, and commercially available
off-the-shelf (COTS) items.
The objective of this proposed rule is
to implement paragraphs (b) and (c) of
section 849 of the NDAA for FY 2018
(Pub. L. 115–91). Section 849 paragraph
(b) requires an amendment to the
DFARS to eliminate certain contract
clause requirements applicable to FAR
part 12 commercial product and
commercial service acquisitions, except
for regulations required by law or
Executive order, unless the Secretary of
Defense determines that there is a
specific reason not to eliminate the
regulation. Section 849 paragraph (c)
requires an amendment to the DFARS to
eliminate certain contract clause
requirements applicable to COTS item
subcontracts, except for regulations
required by law or Executive order,
unless the Secretary of Defense
determines that there is a specific
reason not to eliminate the regulation.
This proposed rule also includes
revisions to implement paragraph (a) of
section 837 of the NDAA for FY 2019
(Pub. L. 115–232). Section 837
paragraph (a) revises 10 U.S.C.
2375(b)(2), redesignated as 10 U.S.C.
3452(b)(2), by deleting the date ‘‘January
1, 2015’’ and adding the date ‘‘October
13, 1994.’’ This proposed rule
implements the change at 10 U.S.C.
3452(b)(2) by proposing an amendment
to the DFARS to eliminate solicitation
provisions and contract clauses enacted
after October 13, 1994, not including the
provisions or clauses referred to in 10
U.S.C. 3452 (e)(1), (e)(2), and (e)(3), from
commercial product and commercial
service solicitations and contracts,
respectively, unless the Under Secretary
of Defense for Acquisition and
Sustainment makes a written
determination that it would not be in
the best interest of the Department of
Defense to exclude them.
According to data from the Federal
Procurement Data System for FY 2020
through FY 2022, DoD awarded
approximately 31,968 contracts for
commercial products, commercial
services, or COTS items to an average of
13,952 unique small entities per year.
The proposed rule applies to all entities
that do business with DoD and is not
expected to have a significant impact on
these entities, regardless of business
size.
This proposed rule does not include
any new reporting, recordkeeping, or
other compliance requirements for small
entities.
The proposed rule does not duplicate,
overlap, or conflict with any other
Federal rules.
There are no known significant
alternative approaches to the proposed
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rule that would meet the requirements
of the applicable statute.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2018–D074), in
correspondence.
VII. Paperwork Reduction Act
The proposed 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 203,
204, 212, and 215
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR parts 203, 204, 212,
and 215 are proposed to be amended as
follows:
1. The authority citation for parts 203,
204, 212, and 215 continues to read as
follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 203—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
203.171–4
[Amended]
[Amended]
3. Amend section 203.1004 in
paragraph (a) by removing ‘‘, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial products and commercial
services,’’.
■
PART 204—ADMINISTRATIVE AND
INFORMATION MATTERS
204.7403
[Amended]
4. Amend section 204.7403 in
paragraph (b) by removing ‘‘contracts,
including’’ and adding ‘‘contracts that
involve litigation support services,
including’’ in its place.
■
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5. Amend section 212.301—
a. In paragraph (f)(i)(B) by removing
‘‘section 847 of Pub. L. 110–181’’ and
adding ‘‘section 847 of the National
Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110–181)’’ in its
place;
■ b. By removing paragraphs (f)(i)(D)
and (E);
■ c. By revising paragraphs (f)(ii)(B)
through (D);
■ d. By removing paragraph (f)(vi)(C);
■ e. By redesignating paragraphs
(f)(vi)(D), (E), and (F) as paragraphs
(f)(vi)(C), (D), and (E), respectively;
■ f. By revising paragraph (f)(viii)(D);
■ g. By revising paragraphs (f)(x)(J)
through (L), (T), and (Z);
■ h. In paragraph (f)(xi)(A) by removing
‘‘Pub. L.’’ and adding ‘‘Public Law’’ in
its place;
■ i. By revising paragraph (f)(xi)(B);
■ j. In paragraph (f)(xii)(C) by removing
‘‘227.7102–4(c)’’ and adding ‘‘227.7102–
4(c), to comply with 10 U.S.C. 3781–
3786’’ in its place;
■ k. In paragraph (f)(xiv)(D) by removing
‘‘232.7102’’ and adding ‘‘232.7102, to
comply with 26 U.S.C. 6331(h)’’ in its
place;
■ l. By revising paragraphs (f)(xv)(A)
and (B);
■ m. By revising paragraph (f)(xix)(B);
and
■ n. By revising paragraph (f)(xx)(A) and
(E).
The revisions read as follows:
■
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial products and commercial
services.
*
2. Amend section 203.171–4 in
paragraph (b) by removing ‘‘solicitations
using FAR part 12 procedures for the
acquisition of commercial products and
commercial services and’’.
■
203.1004
PART 212—ACQUISITION OF
COMMERCIAL PRODUCTS AND
COMMERCIAL SERVICES
Sfmt 4702
*
*
*
*
(f) * * *
(ii) * * *
(B) Use the provision at 252.204–
7008, Compliance with Safeguarding
Covered Defense Information Controls,
as prescribed in 204.7304(a), to comply
with section 941 of the National Defense
Authorization Act for Fiscal Year 2013
(Pub. L. 112–239) and section 1632 of
the National Defense Authorization Act
for Fiscal Year 2015 (Pub. L. 113–291).
(C) Use the clause at 252.204–7009,
Limitations on the Use or Disclosure of
Third-Party Contractor Reported Cyber
Incident Information, as prescribed in
204.7304(b), to comply with section 941
of the National Defense Authorization
Act for Fiscal Year 2013 (Pub. L. 112–
239) and section 1632 of the National
Defense Authorization Act for Fiscal
Year 2015 (Pub. L. 113–291).
(D) Use the clause at 252.204–7012,
Safeguarding Covered Defense
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Information and Cyber Incident
Reporting, as prescribed in 204.7304(c),
to comply with section 941 of the
National Defense Authorization Act for
Fiscal Year 2013 (Pub. L. 112–239) and
section 1632 of the National Defense
Authorization Act for Fiscal Year 2015
(Pub. L. 113–291).
*
*
*
*
*
(viii) * * *
(D) Use the provision at 252.219–
7012, Competition for Religious-Related
Services, as prescribed in 219.270–3, to
comply with section 898 of the National
Defense Authorization Act for Fiscal
Year 2016 (Pub. L. 114–92).
*
*
*
*
*
(x) * * *
(J) Use the clause at 252.225–7016,
Restriction on Acquisition of Ball and
Roller Bearings, as prescribed in
225.7009–5, to comply with section
8065 of Public Law 107–117 and the
same restriction in subsequent DoD
appropriations acts.
(K) Use the clause at 252.225–7017,
Photovoltaic Devices, as prescribed in
225.7017–4(a), to comply with section
846 of the National Defense
Authorization Act for Fiscal Year 2011
(Pub. L. 111–383).
(L) Use the provision at 252.225–
7018, Photovoltaic Devices—Certificate,
as prescribed in 225.7017–4(b), to
comply with section 846 of the National
Defense Authorization Act for Fiscal
Year 2011 (Pub. L. 111–383).
*
*
*
*
*
(T) Use the clause at 252.225–7029,
Acquisition of Uniform Components for
Afghan Military or Afghan National
Police, as prescribed in 225.7703–4(d),
to comply with section 826 of the
National Defense Authorization Act for
Fiscal Year 2013 (Pub. L. 112–239).
*
*
*
*
*
(Z) Use the clause at 252.225–7039,
Defense Contractors Performing Private
Security Functions Outside the United
States, as prescribed in 225.302–6, to
comply with section 862 of the National
Defense Authorization Act for Fiscal
Year 2008 (Pub L. 110–181).
*
*
*
*
*
(xi) * * *
(B) Use the provision at 252.226–
7002, Representation for Demonstration
Project for Contractors Employing
Persons with Disabilities, as prescribed
in 226.7203, to comply with section 853
of the National Defense Authorization
Act for Fiscal Year 2004 (Pub. L. 108–
136).
*
*
*
*
*
(xv) * * *
(A) Use the clause at 252.237–7010,
Prohibition on Interrogation of
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Detainees by Contractor Personnel, as
prescribed in 237.173–5, to comply with
section 1038 of the National Defense
Authorization Act for Fiscal Year 2010
(Pub. L. 111–84).
(B) 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 the National Defense
Authorization Act for Fiscal Year 2005
(Pub. L. 108–375).
*
*
*
*
*
(xix) * * *
(B) 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 the National Defense
Authorization Act for Fiscal Year 2010
(Pub. L. 111–84).
*
*
*
*
*
(xx) * * *
(A) Use the clause at 252.247–7003,
Pass-Through of Motor Carrier Fuel
Surcharge Adjustment to the Cost
Bearer, as prescribed in 247.207, to
comply with section 884 of the National
Defense Authorization Act for Fiscal
Year 2009 (Pub. L. 110–417).
*
*
*
*
*
(E) Use the provision at 252.247–
7026, Evaluation Preference for Use of
Domestic Shipyards—Applicable to
Acquisition of Carriage by Vessel for
DoD Cargo in the Coastwise or
Noncontiguous Trade, as prescribed in
247.574(d), to comply with section 1017
of the National Defense Authorization
Act for Fiscal Year 2007 (Pub. L. 109–
364).
*
*
*
*
*
■ 6. Amend section 212.370 by adding
paragraphs (b) through (d) to read as
follows:
212.370 Inapplicability of certain
provisions and clauses to contracts and
subcontracts for the acquisition of
commercial products, commercial services,
and commercially available off-the-shelf
items.
*
*
*
*
*
(b) 252.203–7003, Agency Office of
the Inspector General.
(c) 252.203–7005, Representation
Relating to Compensation of Former
DoD Officials.
(d) 252.215–7007, Notice of Intent to
Resolicit.
■ 7. Amend section 212.371 by—
■ a. Revising the introductory text; and
■ b. Adding paragraphs (b) through (e).
The revision and additions read as
follows:
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212.371 Inapplicability of certain
provisions and clauses to contracts for the
acquisition of commercially available offthe-shelf items.
Commercially available off-the-shelf
(COTS) items are a subset of commercial
products. Therefore, the provisions and
clauses listed in 212.370 as not
applicable to contracts or subcontracts
for the acquisition of commercial
products are also not applicable to
contracts or subcontracts for the
acquisition of COTS items. In addition,
the following provisions and clauses
published after October 14, 1994, not
expressly authorized in law, are not
applicable or are modified in their
applicability to contracts for the
acquisition of COTS items:
*
*
*
*
*
(b) 252.204–7008, Compliance with
Safeguarding Covered Defense
Information Controls.
(c) 252.204–7019, Notice of NIST SP
800–171 DoD Assessment
Requirements.
(d) 252.204–7020, NIST SP 800–171
DoD Assessment Requirements.
(e) 252.204–7021, Cybersecurity
Maturity Model Certification
Requirements.
212.504
[Amended]
8. Amend section 212.504—
a. By removing paragraph (a)(xiii);
b. By redesignating paragraphs (a)(xiv)
and (xv) as paragraphs (a)(xiii) and (xiv),
respectively; and
■ c. In the newly redesignated
paragraph (a)(xiv) by removing ‘‘(section
8065 of Pub. L. 107–117)’’ and adding
‘‘(section 8065, Pub. L. 107–117)’’ in its
place.
■
■
■
212.505
[Amended]
9. Amend section 212.505
introductory text by removing ‘‘or
modified in their applicability’’ and
adding ‘‘or are modified in their
applicability’’ in its place.
■
PART 215—CONTRACTING BY
NEGOTIATION
10. Amend section 215.371–4—
a. In paragraph (a) introductory text by
removing ‘‘section’’; and
■ b. By adding paragraph (a)(7).
The addition reads as follows:
■
■
215.371–4
Exceptions.
(a) * * *
(7) Acquisitions of commercial
products and commercial services using
FAR part 12 procedures.
*
*
*
*
*
215.371–6
[Amended]
11. Amend section 215.371–6 by
removing ‘‘, including solicitations
■
E:\FR\FM\17NOP2.SGM
17NOP2
80472
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Proposed Rules
using FAR part 12 procedures for the
acquisition of commercial products and
commercial services,’’.
[FR Doc. 2023–25160 Filed 11–16–23; 8:45 am]
BILLING CODE 6001–FR–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 225, and 252
[Docket DARS–2023–0042; Req No. DARS–
2024–00012–FR]
RIN 0750–AL40
Defense Federal Acquisition
Regulation Supplement: Limitation on
the Acquisition of Certain Goods Other
Than United States Goods (DFARS
Case 2021–D022)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement two sections of the National
Defense Authorization Act for Fiscal
Year 2021, one section of the National
Defense Authorization Act for Fiscal
Year 2022, one section of the National
Defense Authorization Act for Fiscal
Year 2023, and one section of the
Consolidated Appropriations Act, 2023.
These statutes remove limitations and
restrictions on certain components that
are no longer required, add new
limitations on other components,
subject to exceptions.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
January 16, 2024, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2021–D022,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for DFARS
Case 2021–D022. Select ‘‘Comment’’
and follow the instructions to submit a
comment. Please include ‘‘DFARS Case
2021–D022’’ on any attached
documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2021–D022 in the subject
line of the message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://
khammond on DSKJM1Z7X2PROD with PROPOSALS2
SUMMARY:
VerDate Sep<11>2014
19:37 Nov 16, 2023
Jkt 262001
www.regulations.gov, approximately
two to three days after submission to
verify posting.
FOR FURTHER INFORMATION CONTACT:
Kimberly Bass, telephone 703–717–
3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS
to implement sections 845 and 1603 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2021 (Pub.
L. 116–283); section 816 of the NDAA
for FY 2022 (Pub. L. 117–81); section
853 of the NDAA for FY 2023 (Pub. L.
117–263), and section 8016 of the
Consolidated Appropriations Act of
2023 (Pub. L. 117–328). These sections
amend 10 U.S.C. 2534, now 10 U.S.C.
4864, to require acquisition of certain
items and components from the national
technology and industrial base. The
national technology and industrial base
is defined at 10 U.S.C. 4801 as the
United States, Australia, Canada, New
Zealand, or the United Kingdom.
Section 845 of the NDAA for FY 2021
amends 10 U.S.C. 4864(a) to update the
list of components for naval vessels at
paragraphs (a)(2)(A) through (E).
Subsequently, section 816 of the NDAA
for FY 2022 added to the list of
components for naval vessels welded
shipboard anchor and mooring chain,
without size restrictions, at 10 U.S.C.
4864(a)(2)(F). Section 845 also added
components for T–AO 205 class vessels
at 10 U.S.C. 4864(a)(4). Section 853 of
the NDAA for FY 2023 added T–ARC
class vessels at 10 U.S.C. 4864(a)(4)
along with the component list for T–AO
205 class vessels. Section 1603 of the
NDAA for FY 2021 added limitations on
procurement of satellite star trackers at
10 U.S.C. 4864(a)(5). Section 8016 of the
Consolidated Appropriations Act, 2023
provided waiver authority to the
Secretary of the Service responsible for
the procurement of welded shipboard
anchor and mooring chain.
Section 845, in updating the list of
components for naval vessels at 10
U.S.C. 4864, removed prior paragraphs
(a)(2) through (5) and redesignated
paragraph (a)(6), components for
auxiliary ships (large medium-speed
diesel engines), as paragraph (a)(3). The
removed paragraphs were: (a)(2)
chemical weapons antidote; (a)(3)(A)
components for naval vessels consisting
of air circuit breakers, welded shipboard
anchor and mooring chain with a
diameter of four inches or less, vessel
propellers; and (a)(3)(B) components of
vessel unique to marine applications of
gyrocompasses, electronic navigation
chart systems, steering controls, pumps,
PO 00000
Frm 00005
Fmt 4701
Sfmt 4702
propulsion and machinery control
systems, and totally enclosed lifeboats;
(a)(4), valves and machine tools; and
(a)(5), ball bearings and roller bearings.
Additionally, section 845 struck
paragraph (j), Inapplicability to certain
contracts to purchase ball bearings or
roller bearings, and redesignated
paragraph (k), Limitation on certain
procurements application process, as
paragraph (j).
II. Discussion and Analysis
Updates to 10 U.S.C. 2534, now 10
U.S.C. 4864, have been incrementally
implemented over time in various
DFARS sections under subpart 225.70 as
follows: 225.7004, Restriction on
acquisition of foreign buses; 225.7006,
Restrictions on air circuit breakers for
naval vessels; 225.7007, Restrictions on
anchor and mooring chain; 225.7008,
Waiver of restrictions of 10 U.S.C. 4864;
and 225.7010, Restrictions on certain
naval vessel and auxiliary ship
components. This proposed rule
aggregates the requirements subject to
10 U.S.C. 4864 under one
comprehensive DFARS section at
225.7004 to facilitate comprehension of
and compliance with the limitations,
exceptions, and waivers applicable to
acquisition of certain goods other than
U.S. goods. As a result, DFARS sections
225.7006 through 225.7008 and section
225.7010 are proposed to be
incorporated, as appropriate and in
alignment with the statutory
requirements being implemented, into a
single DFARS section 225.7004 titled,
‘‘Restrictions on the procurement of
goods other than U.S. goods.’’
Accordingly, sections 225.7006 through
225.7008 and 225.7010 would be
removed and reserved. DFARS section
225.7009, Restriction on ball and roller
bearings, remains as a standalone
section as the authority for this section
is derived from Appropriations Acts,
and not from 10 U.S.C. 4864.
DFARS section 225.7004, Restrictions
on the procurement of goods other than
U.S. goods, is established as the
framework for all coverage related to
implementing 10 U.S.C. 4864. The
current DFARS section 225.7004,
Restriction on acquisition of foreign
buses, is incorporated into this new
redesignated section along with relevant
coverage to implement the statutes
addressed in section I, Background, of
this preamble. The new DFARS section
225.7004 addresses the following:
• 225.7004–0, Scope; added to state
that the section implements 10 U.S.C.
4864.
• 225.7004–1, Definitions; adds new
definitions for ‘‘national technology and
industrial base’’ and ‘‘star tracker.’’
E:\FR\FM\17NOP2.SGM
17NOP2
]]>Agencies
[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80468-80472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25160]
Federal Register / Vol. 88 , No. 221 / Friday, November 17, 2023 /
Proposed Rules
[[Page 80468]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 203, 204, 212, and 215
[Docket DARS-2023-0043; Req No. DARS-2024-00011-FR]
RIN 0750-AK33
Defense Federal Acquisition Regulation Supplement:
Inapplicability of Additional Defense-Unique Laws and Certain Non-
Statutory DFARS Clauses to Commercial Item Contracts (DFARS Case 2018-
D074)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement sections of the National
Defense Authorization Acts for Fiscal Years 2018 and 2019 regarding
applicability of certain solicitation provisions and contract clauses
to contracts and subcontracts for commercial products, commercial
services, and commercially available off-the-shelf items.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before January 16, 2024, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2018-D074, using
either of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2018-D074''. Select ``Comment'' and follow the
instructions to submit a comment. Please include ``DFARS Case 2018-
D074'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2018-D074 in
the subject line of the message.
Comments received generally will be posted without change to
https://www.regulations.gov, including any personal information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms. Jeanette Snyder, telephone 703-
508-7524.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend the DFARS to implement paragraphs (b) and
(c) of section 849 of the National Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 849 paragraph (b)
requires that DoD review the DFARS and propose revisions to eliminate
certain contract clause requirements applicable to Federal Acquisition
Regulation (FAR) part 12 commercial product and commercial service
acquisitions, except for regulations required by law or Executive
order, unless the Secretary of Defense determines that there is a
specific reason not to eliminate the regulation. Section 849 paragraph
(c) requires that DoD review the DFARS and propose revisions to
eliminate certain contract clause requirements applicable to
commercially available off-the-shelf (COTS) item subcontracts, except
for regulations required by law or Executive order, unless the
Secretary of Defense determines that there is a specific reason not to
eliminate the regulation.
DoD also proposes to amend the DFARS to implement paragraph (a) of
section 837 of the NDAA for FY 2019 (Pub. L. 115-232). Section 837
paragraph (a) revises 10 U.S.C. 2375(b)(2), redesignated as 10 U.S.C.
3452(b)(2), by deleting the date ``January 1, 2015'' and adding the
date ``October 13, 1994'' (the date of the Federal Acquisition
Streamlining Act (FASA) of 1994). See companion DFARS case 2017-D010
proposed rule, published in the Federal Register at 83 FR 30646 on June
29, 2018, which examined commercial product and commercial service
applicability for DoD-unique statutes and associated contract clauses
issued on or after January 1, 2015. This proposed rule under DFARS Case
2018-D074 implements the section 837(a) change to 10 U.S.C. 3452(b)(2)
to extend the required review of applicability of provisions of law or
contract clauses to prime contracts for commercial products and
commercial services enacted after October 13, 1994. Paragraphs (c)(2)
and (d)(2) of 10 U.S.C. 3452 contain similar requirements for
subcontracts for commercial products and commercial services, and
contracts for COTS items; however, the date of October 13, 1994, is not
repeated in these sections. Following the precedent set in DFARS Case
2017-D010, for this proposed rule DoD has interpreted the date of
October 13, 1994, as equally applicable to all three paragraphs,
(b)(2), (c)(2), and (d)(2), since all three paragraphs are inter-
related.
It should be noted that a clause that is inapplicable to a contract
for commercial products is also inapplicable to a contract for COTS
items, which are commercial products, but a clause that is applicable
to a contract for commercial products may be inapplicable to a contract
for COTS items. The reason for this distinction is because a COTS item,
while a subset of commercial products, is unique in that it is offered
to the Government without modification and in the same form in which it
is sold in the commercial marketplace.
II. Discussion and Analysis
DoD identified the DFARS solicitation provisions and contract
clauses published as interim or final rules after October 13, 1994,
excluding those reviewed under DFARS case 2017-D010, and determined
whether the provisions and clauses were based on statute, Executive
order, or policy. New interim or final rules published after the
publication of DFARS case 2017-D010 on June 29, 2018, were also
identified and evaluated under this proposed rule. Provisions and
clauses listed at DFARS section 212.301 as applicable to the
acquisition of commercial products and commercial services were
included in the review.
The proposed rule adds to the list of inapplicable provisions and
clauses at DFARS 212.370, Inapplicability of Certain Provisions and
Clauses to Contracts and Subcontracts for the Acquisition of Commercial
Products, Commercial Services, and Commercially Available Off-the-shelf
Items, two provisions and one clause that are removed from paragraph
(f) at DFARS 212.301, Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Products and Commercial Services. These
provisions and clause will no longer be applicable to contracts and
subcontracts for the acquisition of commercial products, commercial
services, and COTS items:
DFARS 252.203-7003, Agency Office of the Inspector
General.
DFARS 252.203-7005, Representation Relating to
Compensation of Former DoD Officials.
DFARS 252.215-7007, Notice of Intent to Resolicit.
The proposed rule updates the text at DFARS 212.371,
Inapplicability of Certain Provisions and Clauses to Contracts for the
Acquisition of Commercially Available Off-the-shelf Items, to conform
to the change at 10 U.S.C. 3452(b)(2) by replacing the date of January
1, 2015, with October 13, 1994. In addition, two provisions and two
clauses, listed at DFARS 212.301,
[[Page 80469]]
are included on the list at DFARS 212.371. This means that although
these provisions and clauses are applicable to contracts for the
acquisition of commercial products and commercial services, they are
not applicable to contracts for the acquisition of COTS items:
252.204-7008, Compliance with Safeguarding Covered Defense
Information Controls.
252.204-7019, Notice of NIST SP 800-171 DoD Assessment
Requirements.
252.204-7020, NIST SP 800-171 DoD Assessment Requirements.
252.204-7021, Cybersecurity Maturity Model Certification
Requirements.
The proposed rule revises the following prescriptions for two
provisions and one clause to remove the requirement to include the
provisions and clause in solicitations using FAR part 12 procedures for
the acquisition of commercial products and commercial services:
The prescription at DFARS 203.171-4(b) for the provision
at DFARS 252.203-7005, Representation Relating to Compensation of
Former DoD Officials.
The prescription at DFARS 203.1004(a) for the clause at
DFARS 252.203-7003, Agency Office of the Inspector General.
The prescription at DFARS 215.371-6, for the provision at
DFARS 252.215-7007, Notice of Intent to Resolicit.
DFARS 204.7403(b) is amended to add the phrase ``that involve
litigation support services'' to clarify the application of the clause
at 252.204-7015, Notice of Authorized Disclosure of Information for
Litigation Support. At DFARS 212.301, the list of provisions and
clauses under paragraph (f) is amended to add statutory references or
expand on the existing references cited for several clauses and
provisions.
Section 212.504, Applicability of Certain Laws to Subcontracts for
the Acquisition of Commercial Products and Commercial Services, is
amended to remove the reference to 10 U.S.C. 4871, Reporting
Requirement Regarding Dealings with Terrorist Countries, which is
obsolete. The reporting requirement expired on September 30, 1996.
For this proposed rule, DoD evaluated solicitation provisions or
contract clauses in relation to 10 U.S.C. 3452 (e)(1), (e)(2), and
(e)(3), i.e., those that implement a statute that provides for criminal
or civil penalties, implement 10 U.S.C. 4862 or 4863, or implement
statutes that specifically referred to 10 U.S.C. 3452 and provided for
applicability to contracts for commercial products and commercial
services. DoD also identified pre-FASA provisions and clauses. A list
of those provisions and clauses follows this paragraph. No provisions
or clauses were identified as implementing statutes that specifically
referred to 10 U.S.C. 3452.
The following provisions and clauses implement statutes that
provide for criminal or civil penalties:
252.203-7000, Requirements Relating to Compensation of
Former DoD Officials.
252.203-7002, Requirement to Inform Employees of
Whistleblower Rights.
252.246-7007, Contractor Counterfeit Electronic Part
Detection and Avoidance System. (Applies to subcontracts.)
252.246-7008, Sources of Electronic Parts.
252.247-7027, Riding Gang Member Requirements.
The following provisions and clauses implement 10 U.S.C. 4862 or
4863:
252.225-7006, Acquisition of the American Flag.
252.225-7008, Restriction on Acquisition of Specialty
Metals.
252.225-7009, Restriction on Acquisition of Certain
Articles Containing Specialty Metals.
252.225-7010, Commercial Derivative Military Article-
Specialty Metals Compliance Certificate.
252.225-7012, Preference for Certain Domestic Commodities.
252.225-7015, Restriction on Acquisition of Hand or
Measuring Tools.
252.225-7029, Acquisition of Uniform Components for Afghan
Military or Afghan National Police.
The following clauses existed prior to FASA (i.e., before October
14, 1994).
252.205-7000, Provision of Information to Cooperative
Agreement Holders.
252.219-7003, Small Business Subcontracting Plan (DoD
Contracts).
252.225-7001, Buy American and Balance of Payments
Program.
252.247-7023, Transportation of Supplies by Sea.
252.247-7025, Reflagging or Repair Work.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products, Including Commercially
Available Off-the-Shelf (COTS) Items, and for Commercial Services
This proposed rule does not create any new solicitation provisions
or contract clauses. However, the proposed rule proposes to change to
the applicability of the following provisions and clause by making them
inapplicable to contracts and subcontracts for the acquisition of
commercial products, commercial services, and COTS items: (1) 252.203-
7003, Agency Office of the Inspector General; (2) 252.203-7005,
Representation Relating to Compensation of Former DoD Officials; and
(3) 252.215-7007, Notice of Intent to Resolicit.
IV. Expected Impact of the Proposed Rule
This proposed rule, when finalized, could impact any large or small
business that is awarded a commercial contract by DoD. The proposed
rule does not add any new solicitation provisions or contract clauses.
Rather, there may be a reduction in burden on contractors by making two
solicitation provisions and one contract clause no longer applicable to
solicitations and contracts for commercial products, commercial
services, and COTS items.
V. 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, as amended.
VI. Regulatory Flexibility Act
DoD does not expect this proposed rule, when finalized, to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq. However, an initial regulatory flexibility analysis has been
performed and is summarized as follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement sections of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 and the NDAA
for FY 2019 regarding applicability of certain solicitation provisions
and contract clauses to contracts and subcontracts for commercial
products, commercial
[[Page 80470]]
services, and commercially available off-the-shelf (COTS) items.
The objective of this proposed rule is to implement paragraphs (b)
and (c) of section 849 of the NDAA for FY 2018 (Pub. L. 115-91).
Section 849 paragraph (b) requires an amendment to the DFARS to
eliminate certain contract clause requirements applicable to FAR part
12 commercial product and commercial service acquisitions, except for
regulations required by law or Executive order, unless the Secretary of
Defense determines that there is a specific reason not to eliminate the
regulation. Section 849 paragraph (c) requires an amendment to the
DFARS to eliminate certain contract clause requirements applicable to
COTS item subcontracts, except for regulations required by law or
Executive order, unless the Secretary of Defense determines that there
is a specific reason not to eliminate the regulation.
This proposed rule also includes revisions to implement paragraph
(a) of section 837 of the NDAA for FY 2019 (Pub. L. 115-232). Section
837 paragraph (a) revises 10 U.S.C. 2375(b)(2), redesignated as 10
U.S.C. 3452(b)(2), by deleting the date ``January 1, 2015'' and adding
the date ``October 13, 1994.'' This proposed rule implements the change
at 10 U.S.C. 3452(b)(2) by proposing an amendment to the DFARS to
eliminate solicitation provisions and contract clauses enacted after
October 13, 1994, not including the provisions or clauses referred to
in 10 U.S.C. 3452 (e)(1), (e)(2), and (e)(3), from commercial product
and commercial service solicitations and contracts, respectively,
unless the Under Secretary of Defense for Acquisition and Sustainment
makes a written determination that it would not be in the best interest
of the Department of Defense to exclude them.
According to data from the Federal Procurement Data System for FY
2020 through FY 2022, DoD awarded approximately 31,968 contracts for
commercial products, commercial services, or COTS items to an average
of 13,952 unique small entities per year. The proposed rule applies to
all entities that do business with DoD and is not expected to have a
significant impact on these entities, regardless of business size.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small entities.
The proposed rule does not duplicate, overlap, or conflict with any
other Federal rules.
There are no known significant alternative approaches to the
proposed rule that would meet the requirements of the applicable
statute.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D074), in
correspondence.
VII. Paperwork Reduction Act
The proposed 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 203, 204, 212, and 215
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 203, 204, 212, and 215 are proposed to be
amended as follows:
0
1. The authority citation for parts 203, 204, 212, and 215 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
203.171-4 [Amended]
0
2. Amend section 203.171-4 in paragraph (b) by removing ``solicitations
using FAR part 12 procedures for the acquisition of commercial products
and commercial services and''.
203.1004 [Amended]
0
3. Amend section 203.1004 in paragraph (a) by removing ``, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial products and commercial services,''.
PART 204--ADMINISTRATIVE AND INFORMATION MATTERS
204.7403 [Amended]
0
4. Amend section 204.7403 in paragraph (b) by removing ``contracts,
including'' and adding ``contracts that involve litigation support
services, including'' in its place.
PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
0
5. Amend section 212.301--
0
a. In paragraph (f)(i)(B) by removing ``section 847 of Pub. L. 110-
181'' and adding ``section 847 of the National Defense Authorization
Act for Fiscal Year 2008 (Pub. L. 110-181)'' in its place;
0
b. By removing paragraphs (f)(i)(D) and (E);
0
c. By revising paragraphs (f)(ii)(B) through (D);
0
d. By removing paragraph (f)(vi)(C);
0
e. By redesignating paragraphs (f)(vi)(D), (E), and (F) as paragraphs
(f)(vi)(C), (D), and (E), respectively;
0
f. By revising paragraph (f)(viii)(D);
0
g. By revising paragraphs (f)(x)(J) through (L), (T), and (Z);
0
h. In paragraph (f)(xi)(A) by removing ``Pub. L.'' and adding ``Public
Law'' in its place;
0
i. By revising paragraph (f)(xi)(B);
0
j. In paragraph (f)(xii)(C) by removing ``227.7102-4(c)'' and adding
``227.7102-4(c), to comply with 10 U.S.C. 3781-3786'' in its place;
0
k. In paragraph (f)(xiv)(D) by removing ``232.7102'' and adding
``232.7102, to comply with 26 U.S.C. 6331(h)'' in its place;
0
l. By revising paragraphs (f)(xv)(A) and (B);
0
m. By revising paragraph (f)(xix)(B); and
0
n. By revising paragraph (f)(xx)(A) and (E).
The revisions read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
* * * * *
(f) * * *
(ii) * * *
(B) Use the provision at 252.204-7008, Compliance with Safeguarding
Covered Defense Information Controls, as prescribed in 204.7304(a), to
comply with section 941 of the National Defense Authorization Act for
Fiscal Year 2013 (Pub. L. 112-239) and section 1632 of the National
Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).
(C) Use the clause at 252.204-7009, Limitations on the Use or
Disclosure of Third-Party Contractor Reported Cyber Incident
Information, as prescribed in 204.7304(b), to comply with section 941
of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L.
112-239) and section 1632 of the National Defense Authorization Act for
Fiscal Year 2015 (Pub. L. 113-291).
(D) Use the clause at 252.204-7012, Safeguarding Covered Defense
[[Page 80471]]
Information and Cyber Incident Reporting, as prescribed in 204.7304(c),
to comply with section 941 of the National Defense Authorization Act
for Fiscal Year 2013 (Pub. L. 112-239) and section 1632 of the National
Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).
* * * * *
(viii) * * *
(D) Use the provision at 252.219-7012, Competition for Religious-
Related Services, as prescribed in 219.270-3, to comply with section
898 of the National Defense Authorization Act for Fiscal Year 2016
(Pub. L. 114-92).
* * * * *
(x) * * *
(J) Use the clause at 252.225-7016, Restriction on Acquisition of
Ball and Roller Bearings, as prescribed in 225.7009-5, to comply with
section 8065 of Public Law 107-117 and the same restriction in
subsequent DoD appropriations acts.
(K) Use the clause at 252.225-7017, Photovoltaic Devices, as
prescribed in 225.7017-4(a), to comply with section 846 of the National
Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383).
(L) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, as prescribed in 225.7017-4(b), to comply with section 846
of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L.
111-383).
* * * * *
(T) Use the clause at 252.225-7029, Acquisition of Uniform
Components for Afghan Military or Afghan National Police, as prescribed
in 225.7703-4(d), to comply with section 826 of the National Defense
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239).
* * * * *
(Z) Use the clause at 252.225-7039, Defense Contractors Performing
Private Security Functions Outside the United States, as prescribed in
225.302-6, to comply with section 862 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub L. 110-181).
* * * * *
(xi) * * *
(B) Use the provision at 252.226-7002, Representation for
Demonstration Project for Contractors Employing Persons with
Disabilities, as prescribed in 226.7203, to comply with section 853 of
the National Defense Authorization Act for Fiscal Year 2004 (Pub. L.
108-136).
* * * * *
(xv) * * *
(A) 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 the National Defense Authorization Act for
Fiscal Year 2010 (Pub. L. 111-84).
(B) 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 the National Defense Authorization Act for
Fiscal Year 2005 (Pub. L. 108-375).
* * * * *
(xix) * * *
(B) 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 the National Defense
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84).
* * * * *
(xx) * * *
(A) Use the clause at 252.247-7003, Pass-Through of Motor Carrier
Fuel Surcharge Adjustment to the Cost Bearer, as prescribed in 247.207,
to comply with section 884 of the National Defense Authorization Act
for Fiscal Year 2009 (Pub. L. 110-417).
* * * * *
(E) Use the provision at 252.247-7026, Evaluation Preference for
Use of Domestic Shipyards--Applicable to Acquisition of Carriage by
Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as
prescribed in 247.574(d), to comply with section 1017 of the National
Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).
* * * * *
0
6. Amend section 212.370 by adding paragraphs (b) through (d) to read
as follows:
212.370 Inapplicability of certain provisions and clauses to contracts
and subcontracts for the acquisition of commercial products, commercial
services, and commercially available off-the-shelf items.
* * * * *
(b) 252.203-7003, Agency Office of the Inspector General.
(c) 252.203-7005, Representation Relating to Compensation of Former
DoD Officials.
(d) 252.215-7007, Notice of Intent to Resolicit.
0
7. Amend section 212.371 by--
0
a. Revising the introductory text; and
0
b. Adding paragraphs (b) through (e).
The revision and additions read as follows:
212.371 Inapplicability of certain provisions and clauses to contracts
for the acquisition of commercially available off-the-shelf items.
Commercially available off-the-shelf (COTS) items are a subset of
commercial products. Therefore, the provisions and clauses listed in
212.370 as not applicable to contracts or subcontracts for the
acquisition of commercial products are also not applicable to contracts
or subcontracts for the acquisition of COTS items. In addition, the
following provisions and clauses published after October 14, 1994, not
expressly authorized in law, are not applicable or are modified in
their applicability to contracts for the acquisition of COTS items:
* * * * *
(b) 252.204-7008, Compliance with Safeguarding Covered Defense
Information Controls.
(c) 252.204-7019, Notice of NIST SP 800-171 DoD Assessment
Requirements.
(d) 252.204-7020, NIST SP 800-171 DoD Assessment Requirements.
(e) 252.204-7021, Cybersecurity Maturity Model Certification
Requirements.
212.504 [Amended]
0
8. Amend section 212.504--
0
a. By removing paragraph (a)(xiii);
0
b. By redesignating paragraphs (a)(xiv) and (xv) as paragraphs
(a)(xiii) and (xiv), respectively; and
0
c. In the newly redesignated paragraph (a)(xiv) by removing ``(section
8065 of Pub. L. 107-117)'' and adding ``(section 8065, Pub. L. 107-
117)'' in its place.
212.505 [Amended]
0
9. Amend section 212.505 introductory text by removing ``or modified in
their applicability'' and adding ``or are modified in their
applicability'' in its place.
PART 215--CONTRACTING BY NEGOTIATION
0
10. Amend section 215.371-4--
0
a. In paragraph (a) introductory text by removing ``section''; and
0
b. By adding paragraph (a)(7).
The addition reads as follows:
215.371-4 Exceptions.
(a) * * *
(7) Acquisitions of commercial products and commercial services
using FAR part 12 procedures.
* * * * *
215.371-6 [Amended]
0
11. Amend section 215.371-6 by removing ``, including solicitations
[[Page 80472]]
using FAR part 12 procedures for the acquisition of commercial products
and commercial services,''.
[FR Doc. 2023-25160 Filed 11-16-23; 8:45 am]
BILLING CODE 6001-FR-P
