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), 90233-90237 [2024-26054]
Download as PDF
<![CDATA[
Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations
VII. Paperwork Reduction Act
DEPARTMENT OF DEFENSE
This final 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).
Defense Acquisition Regulations
System
List of Subjects in 48 CFR Part 202
RIN 0750–AK33
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, the Defense Acquisition
Regulations System amends 48 CFR part
202 as follows:
1. The authority citation for 48 CFR
part 202 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Amend section 202.101 by revising
the definition of ‘‘Departments and
agencies’’ to read as follows:
■
Definitions.
khammond on DSKJM1Z7X2PROD with RULES
*
*
*
*
*
Departments and agencies, as used in
DFARS, means the military departments
and the defense agencies. The military
departments are the Departments of the
Army, Navy, and Air Force (the Marine
Corps is a part of the Department of the
Navy, and the Space Force is a part of
the Air Force). The defense agencies are
the Chief Digital and Artificial
Intelligence Office, the Defense
Advanced Research Projects Agency, the
Defense Commissary Agency, the
Defense Contract Management Agency,
the Defense Counterintelligence and
Security Agency, the Defense Finance
and Accounting Service, the Defense
Health Agency, the Defense Information
Systems Agency, the Defense
Intelligence Agency, the Defense
Logistics Agency, the Defense Threat
Reduction Agency, the Missile Defense
Agency, the National GeospatialIntelligence Agency, the National
Security Agency, the Strategic
Capabilities Office, the United States
Cyber Command, the United States
Special Operations Command, the
United States Transportation Command,
and the Washington Headquarters
Service.
*
*
*
*
*
[FR Doc. 2024–26059 Filed 11–14–24; 8:45 am]
BILLING CODE 6001–FR–P
VerDate Sep<11>2014
15:41 Nov 14, 2024
Jkt 265001
[Docket DARS–2023–0043]
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: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement sections of the
National Defense Authorization Acts for
Fiscal Years 2018 and 2019 regarding
the 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: Effective November 25, 2024.
FOR FURTHER INFORMATION CONTACT: Ms.
Jeanette Snyder, telephone 703–508–
7524.
SUPPLEMENTARY INFORMATION:
SUMMARY:
PART 202—DEFINITIONS OF WORDS
AND TERMS
202.101
48 CFR Parts 203, 204, 205, 212, 215,
and 225
I. Background
DoD published a proposed rule in the
Federal Register at 88 FR 80468 on
November 17, 2023, 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)
and section 837 of the NDAA for FY
2019 (Pub. L. 115–232). Paragraph (b) of
section 849 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.
Paragraph (c) of section 849 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
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
90233
order, unless the Secretary of Defense
determines that there is a specific
reason not to eliminate the regulation.
Paragraph (a) of section 837 of the
NDAA for FY 2019 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). DoD published an extension to
the comment period in the Federal
Register on December 27, 2023, at 88 FR
89357. Two respondents submitted
public comments in response to the
proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule;
however, no changes were made to the
rule as a result of the comments
received. A discussion of the comments
is provided, as follows:
A. Summary of Significant Changes
From the Proposed Rule
DFARS 212.371 is amended to add
the contract clauses at DFARS 252.204–
7012, Safeguarding Covered Defense
Information and Cyber Incident
Reporting, and 252.205–7000, Provision
of Information to Cooperative
Agreement Holders, to the list of
solicitation provisions and contract
clauses that are inapplicable to contracts
for the acquisition of COTS items. These
clauses are not applicable to contracts
solely for the acquisition of COTS items.
DFARS 212.301 is amended to restore,
to the list of provisions and clauses that
apply to commercial products and
commercial services, the clause at
DFARS 252.203–7005, Representation
Relating to Compensation of Former
DoD Officials, that was removed from
the list in the proposed rule. This
change aligns this final rule with the
final rule for DFARS Case 2010–D020
published in the Federal Register on
November 18, 2011 (76 FR 71826).
B. Analysis of Public Comments
Comment: One respondent
recommended that DFARS clause
252.225–7029, Acquisition of Uniform
Components for Afghan Military or
Afghan National Police, be removed
from the DFARS as it is obsolete, since
the United States is no longer involved
in Afghanistan and is no longer
purchasing uniform components for the
Afghan military or the Afghan National
Police.
Response: DoD acknowledges the
respondent’s concern relating to the
applicability of DFARS clause 252.225–
7029; however, the clause cannot be
removed from the DFARS until the
E:\FR\FM\15NOR1.SGM
15NOR1
90234
Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations
underlying statutory requirement is
repealed.
Comment: One respondent indicated
that the proposed rule did not
sufficiently address the extent to which
DoD reviewed, on a case-by-case basis,
the applicability of all regulations that
require specific contract clauses for
contracts using the procedures in part
12 of the FAR and for subcontracts for
COTS items. The respondent requested
that DoD publish a second proposed
rule that explains and describes the
case-by-case determinations that DoD
made with respect to each of these
regulations.
Response: Section II of the preamble
of the proposed rule provided a
description of the analysis performed. In
addition, the proposed rule for DFARS
Case 2017–D010 (83 FR 30646) provided
a description of the analysis performed
of commercial product and commercial
service applicability for DoD-unique
statutes and associated contract clauses
issued on or after January 1, 2015. In
reviewing the remaining provisions and
clauses, DoD considered procurementrelated reasons including, but not
limited to, the following: national
security, common commercial practice,
domestic preference, prohibited sources,
trade agreements, protection of the
Government, health and safety, and
foreign military sales requirements.
khammond on DSKJM1Z7X2PROD with RULES
C. Other Changes
A conforming change is made to the
prescription at 205.470 for the clause at
DFARS 252.205–7000. Language at
203.171–4(b) regarding applicability to
commercial products and commercial
services, which was proposed for
deletion, has been restored in the
prescription for the provision at DFARS
252.203–7005. DFARS 212.205, Offers,
is removed to align with changes made
at DFARS 215.371–4(a)(7). DFARS
212.371 is amended to change the date
‘‘October 14, 1994’’, to ‘‘October 13,
1994’’ to align with 10 U.S.C. 3452. The
prescription at DFARS 225.1103(4) for
the clause at 252.225–7007, Prohibition
on Acquisition of Certain Items from
Communist Chinese Military
Companies, is amended to add the
requirement to include the clause in
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial products and commercial
services, to align with the determination
made in the final rule for DFARS Case
2018–D020 published on December 21,
2018, at 83 FR 66066.
VerDate Sep<11>2014
15:41 Nov 14, 2024
Jkt 265001
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 final rule does not create any
new solicitation provisions or contract
clauses. However, the final rule clarifies
the applicability of the following
provisions and clause by amending the
list under paragraph (f) at DFARS
212.301, Solicitation provisions and
contract clauses for the acquisition of
commercial products and commercial
services, to remove DFARS clause
252.203–7003, Agency Office of the
Inspector General, and DFARS
provision 252.215–7007, Notice of
Intent to Resolicit. This rule also
clarifies the applicability of certain
provisions and clauses by amending the
list at DFARS 212.370, Inapplicability of
certain provisions and clauses to
contracts and subcontracts for the
acquisition of commercial products,
commercial services, and COTS items,
to add the following: (1) DFARS clause
252.203–7003, Agency Office of the
Inspector General; and (3) DFARS
provision 252.215–7007, Notice of
Intent to Resolicit. In addition, this rule
makes similar clarifications at DFARS
212.371, Inapplicability of certain
provisions and clauses to contracts for
the acquisition of COTS items, to add
the following: (1) DFARS clause
252.205–7000, Provision of Information
to Cooperative Agreement Holders; (2)
DFARS provision 252.204–7008,
Compliance with Safeguarding Covered
Defense Information Controls; (3)
DFARS clause 252.204–7012,
Safeguarding Covered Defense
Information and Cyber Incident
Reporting; (4) DFARS provision
252.204–7019, Notice of NIST SP 800–
171 DoD Assessment Requirements; (5)
DFARS clause 252.204–7020, NIST SP
800–171 DoD Assessment
Requirements; and (6) DFARS clause
252.204–7021, Cybersecurity Maturity
Model Certification Requirements.
IV. Expected Impact of the Proposed
Rule
This final rule could impact any large
or small business that is awarded a
commercial contract by DoD. This rule
does not add any new solicitation
provisions or contract clauses. Rather,
there may be a reduction in burden on
contractors by making one solicitation
provision and one contract clause no
longer applicable to solicitations and
contracts for commercial products,
commercial services, and COTS items,
and by making two provisions and four
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
clauses no longer applicable to
solicitations and contracts for 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. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VII. Regulatory Flexibility Act
A final regulatory flexibility analysis
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq. and is summarized as follows:
This rule is necessary to implement
sections of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2018 and the NDAA for FY
2019 regarding the applicability of
certain solicitation provisions and
contract clauses to contracts and
subcontracts for commercial products,
commercial services, and commercially
available off-the-shelf (COTS) items.
The objective of this 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
E:\FR\FM\15NOR1.SGM
15NOR1
Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations
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 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 rule
implements the change at 10 U.S.C.
3452(b)(2) by amending 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.
No significant issues were raised by
the public comments in response to the
initial regulatory flexibility analysis.
According to data from the Federal
Procurement Data System for FY 2021
through FY 2023, DoD awarded
approximately 31,022 contracts for
commercial products, commercial
services, or COTS items to an average of
13,335 unique small entities per year.
Therefore, DoD estimates that the
number of small entities to which this
rule will apply is 13,335.
This rule does not include any new
reporting, recordkeeping, or other
compliance requirements for small
entities.
There are no known alternatives that
would accomplish the stated objectives
of the statutes.
khammond on DSKJM1Z7X2PROD with RULES
VIII. Paperwork Reduction Act
This final 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).
VerDate Sep<11>2014
15:41 Nov 14, 2024
Jkt 265001
List of Subjects in 48 CFR Parts 203,
204, 205, 212, 215, and 225
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, the Defense Acquisition
Regulations System amends 48 CFR
parts 203, 204, 205, 212, 215, and 225
as follows:
■ 1. The authority citation for parts 203,
204, 205, 212, 215, and 225 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 203—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
2. Amend section 203.1004 by
revising paragraph (a) to read as follows:
■
203.1004
Contract clauses.
(a) Use the clause at 252.203–7003,
Agency Office of the Inspector General,
in solicitations and contracts that
include the FAR clause 52.203–13,
Contractor Code of Business Ethics and
Conduct.
*
*
*
*
*
PART 204—ADMINISTRATIVE AND
INFORMATION MATTERS
3. Amend section 204.7403 by
revising paragraph (b) to read as follows:
■
204.7403
Contract clauses.
*
*
*
*
*
(b) Use the clause at 252.204–7015,
Notice of Authorized Disclosure of
Information for Litigation Support, in
solicitations and contracts that involve
litigation support services, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial products and commercial
services.
PART 205—PUBLICIZING CONTRACT
ACTIONS
4. Revise section 205.470 to read as
follows:
■
205.470
Contract clause.
Use the clause at 252.205–7000,
Provision of Information to Cooperative
Agreement Holders, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial
products and commercial services,
except for solicitations and contracts
solely for the acquisition of
commercially available off-the-shelf
items, that are expected to exceed $1.5
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
90235
million. This clause implements 10
U.S.C. 4957.
PART 212—ACQUISITION OF
COMMERCIAL PRODUCTS AND
COMMERCIAL SERVICES
212.205
[Removed]
5. Remove section 212.205.
6. 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 paragraph (f)(i)(D);
■ c. By redesignating paragraph (f)(i)(E)
as (f)(i)(D);
■ d. By revising paragraphs (f)(ii)(B)
through (D);
■ e. By removing paragraph (f)(vi)(C);
■ f. By redesignating paragraphs
(f)(vi)(D), (E), and (F) as paragraphs
(f)(vi)(C), (D) and (E), respectively;
■ g. By revising paragraph (f)(viii)(D);
■ h. By revising paragraphs (f)(x)(J)
through (L), (U), and (Y);
■ i. In paragraph (f)(xi)(A) by removing
‘‘Pub. L.’’ and adding ‘‘Public Law’’ in
its place;
■ j. By revising paragraph (f)(xi)(B);
■ k. 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;
■ l. 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; and
■ m. By revising paragraphs (f)(xv)(A)
and (B), (f)(xx)(B), and (f)(xxi)(A) and
(D).
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
E:\FR\FM\15NOR1.SGM
15NOR1
khammond on DSKJM1Z7X2PROD with RULES
90236
Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations
Defense Authorization Act for Fiscal
Year 2015 (Pub. L. 113–291).
(D) Use the clause at 252.204–7012,
Safeguarding Covered Defense
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).
*
*
*
*
*
(U) 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).
*
*
*
*
*
(Y) 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).
*
*
*
*
*
VerDate Sep<11>2014
15:41 Nov 14, 2024
Jkt 265001
(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).
*
*
*
*
*
(xx) * * *
(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).
*
*
*
*
*
(xxi) * * *
(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).
*
*
*
*
*
(D) 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(c), to comply with section 1017
of the National Defense Authorization
Act for Fiscal Year 2007 (Pub. L. 109–
364).
*
*
*
*
*
■ 7. Amend section 212.370 by adding
paragraphs (b) and (c) 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) 252.215–7007, Notice of Intent to
Resolicit.
■ 8. Amend section 212.371 by—
■ a. Revising the introductory text;
■ b. Redesignating paragraphs (b)
through (d) as paragraphs (h) through (j),
respectively; and
■ c. Adding new paragraphs (b) through
(g).
The revision and additions read as
follows:
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
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 13, 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) 252.204–7012, Safeguarding
Covered Defense Information and Cyber
Incident Reporting.
(d) 252.204–7019, Notice of NIST SP
800–171 DoD Assessment
Requirements.
(e) 252.204–7020, NIST SP 800–171
DoD Assessment Requirements.
(f) 252.204–7021, Cybersecurity
Maturity Model Certification
Requirements.
(g) 252.205–7000, Provision of
Information to Cooperative Agreement
Holders.
*
*
*
*
*
212.504
[Amended]
9. 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]
10. Amend section 212.505 in the
second sentence of the 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
11. 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) * * *
E:\FR\FM\15NOR1.SGM
15NOR1
Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations
(7) Acquisitions of commercial
products and commercial services using
FAR part 12 procedures.
*
*
*
*
*
■ 12. Revise section 215.371–6 to read
as follows:
215.371–6
Solicitation provision.
Use the provision at 252.215–7007,
Notice of Intent to Resolicit, in
competitive solicitations that will be
solicited for fewer than 30 days, unless
an exception at 215.371–4 applies or the
requirement is waived in accordance
with 215.371–5.
PART 225—FOREIGN ACQUISITION
13. Amend section 225.1103 by
revising paragraph (4) to read as follows:
■
225.1103
Other provisions and clauses.
*
*
*
*
*
(4) Unless an exception in 225.770–3
applies, use the clause at 252.225–7007,
Prohibition on Acquisition of Certain
Items from Communist Chinese Military
Companies, in solicitations and
contracts, including solicitations and
contracts using FAR part 12 procedures
for the acquisition of commercial
products and commercial services,
involving the delivery of items covered
by the United States Munitions List or
the 600 series of the Commerce Control
List.
[FR Doc. 2024–26054 Filed 11–14–24; 8:45 am]
BILLING CODE 6001–FR–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 215
[Docket DARS–2024–0035]
RIN 0750–AM13
Defense Federal Acquisition
Regulation: Past Performance of
Affiliate Companies of Small Business
Concerns (DFARS Case 2024–D016)
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 implement a section of the
National Defense Authorization Act for
Fiscal Year 2024 that provides direction
to contracting officers evaluating the
past performance of small business
concerns.
DATES: Effective November 15, 2024.
khammond on DSKJM1Z7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
15:41 Nov 14, 2024
Jkt 265001
Ms.
Kimberly R. Ziegler, telephone 703–
901–3176.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Background
DoD is issuing a final rule amending
the DFARS to implement section 865 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2024 (Pub.
L. 118–31). Section 865 requires DoD
contracting officers to consider relevant
past performance of affiliate companies
of small business concerns during the
evaluation of past performance in
response to a competitive solicitation.
II. 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 41 U.S.C. 1707,
Publication of Proposed Regulations.
Subsection (a)(1) of the statute 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 there is no significant
cost or administrative impact on
contractors or offerors. When past
performance will be evaluated in a
source selection, contracting officers
already request offerors to submit past
performance information. This rule will
allow offerors to provide past
performance information for an affiliate
company within that submission, and
the Government would consider those
submissions during the existing
evaluation process.
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 final rule does not create any
new solicitation provisions or contract
clauses. It does not impact any existing
solicitation provisions or contract
clauses or their applicability to
contracts valued at or below the
simplified acquisition threshold, for
commercial products including COTS
items, or for commercial services.
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
90237
IV. 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.
V. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules Under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does
not apply to this rule because this final
rule does not constitute a significant
DFARS revision within the meaning of
FAR 1.501–1, and 41 U.S.C. 1707 does
not require publication for public
comment.
VII. Paperwork Reduction Act
This final 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 Part 215
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, the Defense Acquisition
Regulations System amends 48 CFR part
215 as follows:
E:\FR\FM\15NOR1.SGM
15NOR1
]]>Agencies
[Federal Register Volume 89, Number 221 (Friday, November 15, 2024)]
[Rules and Regulations]
[Pages 90233-90237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26054]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 203, 204, 205, 212, 215, and 225
[Docket DARS-2023-0043]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement sections of the
National Defense Authorization Acts for Fiscal Years 2018 and 2019
regarding the 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: Effective November 25, 2024.
FOR FURTHER INFORMATION CONTACT: Ms. Jeanette Snyder, telephone 703-
508-7524.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 88 FR
80468 on November 17, 2023, 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) and section 837 of
the NDAA for FY 2019 (Pub. L. 115-232). Paragraph (b) of section 849
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. Paragraph (c) of
section 849 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.
Paragraph (a) of section 837 of the NDAA for FY 2019 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).
DoD published an extension to the comment period in the Federal
Register on December 27, 2023, at 88 FR 89357. Two respondents
submitted public comments in response to the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule; however, no changes were made to the rule as a result of the
comments received. A discussion of the comments is provided, as
follows:
A. Summary of Significant Changes From the Proposed Rule
DFARS 212.371 is amended to add the contract clauses at DFARS
252.204-7012, Safeguarding Covered Defense Information and Cyber
Incident Reporting, and 252.205-7000, Provision of Information to
Cooperative Agreement Holders, to the list of solicitation provisions
and contract clauses that are inapplicable to contracts for the
acquisition of COTS items. These clauses are not applicable to
contracts solely for the acquisition of COTS items. DFARS 212.301 is
amended to restore, to the list of provisions and clauses that apply to
commercial products and commercial services, the clause at DFARS
252.203-7005, Representation Relating to Compensation of Former DoD
Officials, that was removed from the list in the proposed rule. This
change aligns this final rule with the final rule for DFARS Case 2010-
D020 published in the Federal Register on November 18, 2011 (76 FR
71826).
B. Analysis of Public Comments
Comment: One respondent recommended that DFARS clause 252.225-7029,
Acquisition of Uniform Components for Afghan Military or Afghan
National Police, be removed from the DFARS as it is obsolete, since the
United States is no longer involved in Afghanistan and is no longer
purchasing uniform components for the Afghan military or the Afghan
National Police.
Response: DoD acknowledges the respondent's concern relating to the
applicability of DFARS clause 252.225-7029; however, the clause cannot
be removed from the DFARS until the
[[Page 90234]]
underlying statutory requirement is repealed.
Comment: One respondent indicated that the proposed rule did not
sufficiently address the extent to which DoD reviewed, on a case-by-
case basis, the applicability of all regulations that require specific
contract clauses for contracts using the procedures in part 12 of the
FAR and for subcontracts for COTS items. The respondent requested that
DoD publish a second proposed rule that explains and describes the
case-by-case determinations that DoD made with respect to each of these
regulations.
Response: Section II of the preamble of the proposed rule provided
a description of the analysis performed. In addition, the proposed rule
for DFARS Case 2017-D010 (83 FR 30646) provided a description of the
analysis performed of commercial product and commercial service
applicability for DoD-unique statutes and associated contract clauses
issued on or after January 1, 2015. In reviewing the remaining
provisions and clauses, DoD considered procurement-related reasons
including, but not limited to, the following: national security, common
commercial practice, domestic preference, prohibited sources, trade
agreements, protection of the Government, health and safety, and
foreign military sales requirements.
C. Other Changes
A conforming change is made to the prescription at 205.470 for the
clause at DFARS 252.205-7000. Language at 203.171-4(b) regarding
applicability to commercial products and commercial services, which was
proposed for deletion, has been restored in the prescription for the
provision at DFARS 252.203-7005. DFARS 212.205, Offers, is removed to
align with changes made at DFARS 215.371-4(a)(7). DFARS 212.371 is
amended to change the date ``October 14, 1994'', to ``October 13,
1994'' to align with 10 U.S.C. 3452. The prescription at DFARS
225.1103(4) for the clause at 252.225-7007, Prohibition on Acquisition
of Certain Items from Communist Chinese Military Companies, is amended
to add the requirement to include the clause in solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial products and commercial services, to align with the
determination made in the final rule for DFARS Case 2018-D020 published
on December 21, 2018, at 83 FR 66066.
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 final rule does not create any new solicitation provisions or
contract clauses. However, the final rule clarifies the applicability
of the following provisions and clause by amending the list under
paragraph (f) at DFARS 212.301, Solicitation provisions and contract
clauses for the acquisition of commercial products and commercial
services, to remove DFARS clause 252.203-7003, Agency Office of the
Inspector General, and DFARS provision 252.215-7007, Notice of Intent
to Resolicit. This rule also clarifies the applicability of certain
provisions and clauses by amending the list at DFARS 212.370,
Inapplicability of certain provisions and clauses to contracts and
subcontracts for the acquisition of commercial products, commercial
services, and COTS items, to add the following: (1) DFARS clause
252.203-7003, Agency Office of the Inspector General; and (3) DFARS
provision 252.215-7007, Notice of Intent to Resolicit. In addition,
this rule makes similar clarifications at DFARS 212.371,
Inapplicability of certain provisions and clauses to contracts for the
acquisition of COTS items, to add the following: (1) DFARS clause
252.205-7000, Provision of Information to Cooperative Agreement
Holders; (2) DFARS provision 252.204-7008, Compliance with Safeguarding
Covered Defense Information Controls; (3) DFARS clause 252.204-7012,
Safeguarding Covered Defense Information and Cyber Incident Reporting;
(4) DFARS provision 252.204-7019, Notice of NIST SP 800-171 DoD
Assessment Requirements; (5) DFARS clause 252.204-7020, NIST SP 800-171
DoD Assessment Requirements; and (6) DFARS clause 252.204-7021,
Cybersecurity Maturity Model Certification Requirements.
IV. Expected Impact of the Proposed Rule
This final rule could impact any large or small business that is
awarded a commercial contract by DoD. This rule does not add any new
solicitation provisions or contract clauses. Rather, there may be a
reduction in burden on contractors by making one solicitation provision
and one contract clause no longer applicable to solicitations and
contracts for commercial products, commercial services, and COTS items,
and by making two provisions and four clauses no longer applicable to
solicitations and contracts for 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. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VII. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
and is summarized as follows:
This rule is necessary to implement sections of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 and the NDAA
for FY 2019 regarding the applicability of certain solicitation
provisions and contract clauses to contracts and subcontracts for
commercial products, commercial services, and commercially available
off-the-shelf (COTS) items.
The objective of this 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
[[Page 90235]]
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 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 rule implements the change at 10 U.S.C.
3452(b)(2) by amending 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.
No significant issues were raised by the public comments in
response to the initial regulatory flexibility analysis.
According to data from the Federal Procurement Data System for FY
2021 through FY 2023, DoD awarded approximately 31,022 contracts for
commercial products, commercial services, or COTS items to an average
of 13,335 unique small entities per year. Therefore, DoD estimates that
the number of small entities to which this rule will apply is 13,335.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small entities.
There are no known alternatives that would accomplish the stated
objectives of the statutes.
VIII. Paperwork Reduction Act
This final 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, 205, 212, 215, and 225
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System amends 48 CFR
parts 203, 204, 205, 212, 215, and 225 as follows:
0
1. The authority citation for parts 203, 204, 205, 212, 215, and 225
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
0
2. Amend section 203.1004 by revising paragraph (a) to read as follows:
203.1004 Contract clauses.
(a) Use the clause at 252.203-7003, Agency Office of the Inspector
General, in solicitations and contracts that include the FAR clause
52.203-13, Contractor Code of Business Ethics and Conduct.
* * * * *
PART 204--ADMINISTRATIVE AND INFORMATION MATTERS
0
3. Amend section 204.7403 by revising paragraph (b) to read as follows:
204.7403 Contract clauses.
* * * * *
(b) Use the clause at 252.204-7015, Notice of Authorized Disclosure
of Information for Litigation Support, in solicitations and contracts
that involve litigation support services, including solicitations and
contracts using FAR part 12 procedures for the acquisition of
commercial products and commercial services.
PART 205--PUBLICIZING CONTRACT ACTIONS
0
4. Revise section 205.470 to read as follows:
205.470 Contract clause.
Use the clause at 252.205-7000, Provision of Information to
Cooperative Agreement Holders, in solicitations and contracts,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial products and commercial services, except
for solicitations and contracts solely for the acquisition of
commercially available off-the-shelf items, that are expected to exceed
$1.5 million. This clause implements 10 U.S.C. 4957.
PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
212.205 [Removed]
0
5. Remove section 212.205.
0
6. 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 paragraph (f)(i)(D);
0
c. By redesignating paragraph (f)(i)(E) as (f)(i)(D);
0
d. By revising paragraphs (f)(ii)(B) through (D);
0
e. By removing paragraph (f)(vi)(C);
0
f. By redesignating paragraphs (f)(vi)(D), (E), and (F) as paragraphs
(f)(vi)(C), (D) and (E), respectively;
0
g. By revising paragraph (f)(viii)(D);
0
h. By revising paragraphs (f)(x)(J) through (L), (U), and (Y);
0
i. In paragraph (f)(xi)(A) by removing ``Pub. L.'' and adding ``Public
Law'' in its place;
0
j. By revising paragraph (f)(xi)(B);
0
k. 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
l. 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; and
0
m. By revising paragraphs (f)(xv)(A) and (B), (f)(xx)(B), and
(f)(xxi)(A) and (D).
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
[[Page 90236]]
Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).
(D) Use the clause at 252.204-7012, Safeguarding Covered Defense
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).
* * * * *
(U) 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).
* * * * *
(Y) 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).
* * * * *
(xx) * * *
(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).
* * * * *
(xxi) * * *
(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).
* * * * *
(D) 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(c), to comply with section 1017 of the National
Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).
* * * * *
0
7. Amend section 212.370 by adding paragraphs (b) and (c) 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) 252.215-7007, Notice of Intent to Resolicit.
0
8. Amend section 212.371 by--
0
a. Revising the introductory text;
0
b. Redesignating paragraphs (b) through (d) as paragraphs (h) through
(j), respectively; and
0
c. Adding new paragraphs (b) through (g).
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 13, 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) 252.204-7012, Safeguarding Covered Defense Information and
Cyber Incident Reporting.
(d) 252.204-7019, Notice of NIST SP 800-171 DoD Assessment
Requirements.
(e) 252.204-7020, NIST SP 800-171 DoD Assessment Requirements.
(f) 252.204-7021, Cybersecurity Maturity Model Certification
Requirements.
(g) 252.205-7000, Provision of Information to Cooperative Agreement
Holders.
* * * * *
212.504 [Amended]
0
9. 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
10. Amend section 212.505 in the second sentence of the 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
11. 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) * * *
[[Page 90237]]
(7) Acquisitions of commercial products and commercial services
using FAR part 12 procedures.
* * * * *
0
12. Revise section 215.371-6 to read as follows:
215.371-6 Solicitation provision.
Use the provision at 252.215-7007, Notice of Intent to Resolicit,
in competitive solicitations that will be solicited for fewer than 30
days, unless an exception at 215.371-4 applies or the requirement is
waived in accordance with 215.371-5.
PART 225--FOREIGN ACQUISITION
0
13. Amend section 225.1103 by revising paragraph (4) to read as
follows:
225.1103 Other provisions and clauses.
* * * * *
(4) Unless an exception in 225.770-3 applies, use the clause at
252.225-7007, Prohibition on Acquisition of Certain Items from
Communist Chinese Military Companies, in solicitations and contracts,
including solicitations and contracts using FAR part 12 procedures for
the acquisition of commercial products and commercial services,
involving the delivery of items covered by the United States Munitions
List or the 600 series of the Commerce Control List.
[FR Doc. 2024-26054 Filed 11-14-24; 8:45 am]
BILLING CODE 6001-FR-P
