[Federal Register Volume 76, Number 13 (Thursday, January 20, 2011)]
[Rules and Regulations]
[Pages 3536-3538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-822]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 216, 219, 225, 227, 233, 245, 249, and 252


Defense Federal Acquisition Regulation Supplement; Technical 
Amendments

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

ACTION: Final rule.

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SUMMARY: DoD is making technical amendments to the Defense Federal 
Acquisition Regulation Supplement (DFARS) to provide needed editorial 
changes and guidance to contracting officers.

DATES: Effective Date: January 20, 2011.

FOR FURTHER INFORMATION CONTACT: Ms. Ynette Shelkin, Defense 
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), Room 3B855, 
3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 703-602-
0311; facsimile 703-602-0350.

SUPPLEMENTARY INFORMATION: This final rule amends the DFARS as follows:
    [cir] 216.504. Adds a paragraph inadvertently omitted from an 
interim rule published at 75 FR 40716 on July 13, 2010.
    [cir] Subpart 219.3. Adds new subpart with language to direct 
contracting officers to additional procedures and guidance.
    [cir] 225.7503. Thresholds are updated (see 75 FR 45072, August 2, 
2010, DFARS Case 2009-D003) and minor corrections to inconsistencies in 
prescription of clause alternates.
    [cir] 227.7004. Correct the format of the list of offices to 
contact.
    [cir] 227.7203-5. Grammar is corrected and commas added for 
clarity.
    [cir] 227.7203-6, 227.7204. Corrects the name of the Small Business 
Innovation Research Program referenced in these sections.
    [cir] 227.7203-14. Corrects reference to DFARS 246.7.
    [cir] Subpart 233.1. Adds new subpart with language to direct 
contracting officers to additional procedures and guidance.
    [cir] 245.1, 245.2, and 245.4. Adds language in subpart 245.1 and 
adds two new subparts to direct contracting officers to additional 
Government property procedures and guidance.
    [cir] 249.7000. Updates the reference to the Canadian Supply Manual 
for terminations for convenience.
    [cir] 252.212-7001. Corrects a clause number in (b)(11)(iii) and 
reverses the order of two clauses in paragraphs (c)(1) and (2).
    [cir] 252.219-7004. Updates thresholds (see 75 FR 45072, August 2, 
2010, DFARS Case 2009-D003).
    [cir] 252.225-7009. Changes an incorrect numerical reference.
    [cir] 252.227.7016; 252.227-7017; 252.227-7018; and 252.227-7025. 
Corrects the name of the Small Business Innovation Research Program 
where incorrectly referenced as the ``Small Business Innovative 
Research Program.''

List of Subjects in 48 CFR Parts 216, 219, 225, 227, 233, 245, 249, 
and 252

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 216, 219, 225, 227, 233, 245, 249, and 252 
are amended as follows:

0
1. The authority citation for 48 CFR parts 216, 219, 225, 227, 233, 
245, 249, and 252 continues to read as follows:

    Authority:  41 U.S.C. 421 and 48 CFR chapter 1.

PART 216--TYPES OF CONTRACTS

0
2. Section 216.504 is amended to add paragraph (c)(1)(ii)(D)(3) to read 
as follows:


216.504   Indefinite-quantity contracts.

    (c)(1)(ii)(D) * * *
    (3) A copy of any determination made in accordance with FAR 
16.504(c)(1)(ii)(D) shall be submitted to: Deputy Director, Defense 
Procurement (Contract Policy and International Contracting), OUSD 
(AT&L) DPAP (CPIC), 3060 Defense Pentagon, Washington, DC 20301-3060.

PART 219--SMALL BUSINESS PROGRAMS

0
3. Subpart 219.3 is added to read as follows:
Subpart 219.3 Determination of Small Business Status for Small Business 
Programs
Sec.
219.303 Determining North American Industry Classification System 
(NAICS) codes and size standards.

Subpart 219.3 Determination of Small Business Status for Small 
Business Programs


219.303   Determining North American Industry Classification System 
(NAICS) codes and size standards.

    Contracting officers shall follow the procedures for ``Correctly 
Identifying Size Status of Contractors'' in the OUSD (AT&L) DPAP 
memorandum dated July 21, 2010.

PART 225--FOREIGN ACQUISITION

0
4. Section 225.7503 is amended by revising paragraph (b) to read as 
follows:


225.7503   Contract clauses.

* * * * *
    (b)(1) Use the clause at 252.225-7045, Balance of Payments 
Program--Construction Material Under Trade Agreements, in solicitations 
and contracts for construction to be performed outside the United 
States with a value of $7,804,000 or more.
    (2) For acquisitions with a value of $7,804,000 or more, but less 
than $9,110,318, use the clause with its Alternate I, unless the 
acquisition is in support of operations in Afghanistan.
    (3) If the acquisition is for construction with a value of 
$9,110,318 or more and is in support of operations in Afghanistan, use 
the clause with its Alternate II.
    (4) If the acquisition is for construction with a value of 
$7,804,000 or more, but less than $9,110,318, and is in support of 
operations in Afghanistan, use the clause with its Alternate III.

PART 227--PATENTS, DATA, AND COPYRIGHTS

0
5. Section 227.7004 is amended by revising paragraph (c) to read as 
follows:


227.7004   Requirements for filing an administrative claim for patent 
infringement.

* * * * *
    (c) Any department receiving an allegation of patent infringement 
which meets the requirements of this paragraph shall acknowledge the 
same and supply the other departments that may have an interest therein 
with a copy of such communication and the acknowledgement thereof.
    (1) For the Department of the Army--Chief, Patents, Copyrights, and 
Trademarks Division, U.S. Army Legal Services Agency;

[[Page 3537]]

    (2) For the Department of the Navy--the Patent Counsel for Navy, 
Office of Naval Research;
    (3) For the Department of the Air Force--Chief, Patents Division, 
Office of the Judge Advocate General;
    (4) For the Defense Logistics Agency--the Office of Counsel;
    (5) For the National Security Agency--the General Counsel;
    (6) For the Defense Information Systems Agency--the Counsel;
    (7) For the Defense Threat Reduction Agency--the General Counsel; 
and
    (8) For the National Geospatial-Intelligence Agency--the Counsel.
* * * * *

0
6. Section 227.7203-5 is amended by revising paragraph (c)(1), to read 
as follows:


227.7203-5   Government rights.

* * * * *
    (c) * * *
    (1) The Government obtains restricted rights in noncommercial 
computer software, required to be delivered or otherwise provided to 
the Government under a contract, that was developed exclusively at 
private expense.
* * * * *


227.7203-6   [Amended]

0
7. Section 227.7203-6 is amended in paragraph (a)(1) by removing 
``Innovative'' and adding in its place ``Innovation''.


227.7203-14   [Amended]

0
8. Section 227.7204 is amended in paragraph (b)(2)(i) by removing 
``246.770'' and adding in its place ``246.7''.


227.7204   [Amended]

0
9. Section 227.7204 is amended by removing ``Innovative'' and adding in 
its place ``Innovation'' in the heading and in the text.

PART 233--PROTESTS, DISPUTES, AND APPEALS

0
10. Subpart 233.1 is added to read as follows:
Subpart 233.1--Protests
Sec.
233.170 Briefing requirement for protested acquisitions valued at $1 
billion or more.

Subpart 233.1--Protests


233.170   Briefing requirement for protested acquisitions valued at $1 
billion or more.

    Follow the procedures at PGI 233.170 for briefing protested 
acquisitions valued at $1 billion or more.

PART 245--GOVERNMENT PROPERTY

0
11. Section 245.102 is amended by adding introductory text to read as 
follows:


245.102   Policy.

    (See the policy guidance at PGI 245.102-70.)
* * * * *

0
12. Section 245.103 is added to read as follows:


245.103   General.

    (1) Follow the procedures at PGI 245.103-70 for furnishing 
Government property to contractors.
    (2) Follow the procedures at PGI 245.103-71 for transferring 
Government property accountability.

0
13. Subpart 245.2 is added to read as follows:
Subpart 245.2--Solicitation and Evaluation Procedures
Sec.
245.201 Solicitation.
245.201-70 Definitions.
245.201-71 GFP attachments to solicitations and awards.
245.201-72 Contracting office responsibilities.
245.201-73 Security classification.

Subpart 245.2--Solicitation and Evaluation Procedures


245.201   Solicitation.


245.201-70   Definitions.

    See the definitions at PGI 245.201-70.


245.201-71   GFP attachments to solicitations and awards.

    See PGI 245.201-71 for procedures for preparing GFP attachments to 
solicitations and awards.


245.201-72   Contracting office responsibilities.

    See PGI 245.201-72 for contracting office responsibilities.


245.201-73   Security classification.

    Follow the procedures at PGI 245.201-73 for security 
classification.

0
14. Subpart 245.4 is added to read as follows:
Subpart 245.4--Title to Government Property
Sec.
245.402 Title to contractor-acquired property.
245.402-70 Policy.
245.402-71 Delivery of contractor-acquired property.

Subpart 245.4--Title to Government Property


245.402   Title to contractor-acquired property.


245.402-70   Policy.

    Review the guidance and follow the procedures at PGI 245.402-70 
with regard to recording and financial/accounting treatment of 
contractor-acquired property.


245.402-71   Delivery of contractor-acquired property.

    Follow the procedures at PGI 245.402-71 for the delivery of 
contractor-acquired property.

PART 249--TERMINATION OF CONTRACTS

0
15. Section 249.7000, paragraph (a)(3), is revised to read as follows:


249.7000   Terminated contracts with Canadian Commercial Corporation.

    (a) * * *
    (3) The Canadian Supply Manual, Chapter 8, Annex 8.3, available at  
http://www.tpsgc-pwgsc.gc.ca/app-acq/ga-sm/index-eng.html, 
``Termination for Convenience Process, Public Works and Government 
Services Canada.''
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
16. Section 252.212-7001 is amended by:
0
a. Amending the clause date by removing ``(DEC 2010)'' and adding in 
its place ``(JAN 2011)'';
0
b. Amending paragraph (b)(11)(iii) by removing ``252.225-7001'' and 
adding in its place ``252.225-7021''; and
0
c. Removing paragraph (c)(1); redesignating paragraph (c)(2) as 
paragraph (c)(1); and adding a new paragraph (c)(2) to read as follows:


252.212-7001   Contract terms and conditions required to implement 
statutes or Executive orders applicable to Defense acquisitions of 
commercial items.

* * * * *
    (c) * * *
    (2) 252.237-7019, Training for Contractor Personnel Interacting 
with Detainees (SEP 2006) (Section 1092 of Public Law 108-375).
* * * * *

0
17. Section 252.219-7004 is revised to read as follows:


252.219-7004   Small business subcontracting plan (test program).

    As prescribed in 219.708(b)(1)(B), use the following clause:

[[Page 3538]]

SMALL BUSINESS SUBCONTRACTING PLAN (TEST PROGRAM) (JAN 2011)

    (a) Definitions.
    Electronic Subcontracting Reporting System (eSRS) means the 
Governmentwide, electronic, Web-based system for small business 
subcontracting program reporting. The eSRS is located at http://www.esrs.gov.
    Subcontract, as used in this clause, means any agreement (other 
than one involving an employer-employee relationship) entered into 
by a Federal Government prime Contractor or subcontractor calling 
for supplies or services required for performance of the contract or 
subcontract.
    (b) The Contractor's comprehensive small business subcontracting 
plan and its successors, which are authorized by and approved under 
the test program of section 834 of Pub. L. 101-189, as amended, 
shall be included in and made a part of this contract. Upon 
expulsion from the test program or expiration of the test program, 
the Contractor shall negotiate an individual subcontracting plan for 
all future contracts that meet the requirements of section 211 of 
Public Law 95-507.
    (c) The Contractor shall--
    (1) Ensure that subcontractors with subcontracting plans agree 
to submit an Individual Subcontract Report (ISR) and/or Summary 
Subcontract Report (SSR) using the Electronic Subcontracting 
Reporting System (eSRS).
    (2) Provide its contract number, its DUNS number, and the e-mail 
address of the Contractor's official responsible for acknowledging 
or rejecting the ISR to all first-tier subcontractors, who will be 
required to submit ISRs, so they can enter this information into the 
eSRS when submitting their reports.
    (3) Require that each subcontractor with a subcontracting plan 
provide the prime contract number, its own DUNS number, and the e-
mail address of the subcontractor's official responsible for 
acknowledging or rejecting the ISRs to its subcontractors with 
subcontracting plans who will be required to submit ISRs.
    (4) Acknowledge receipt or reject all ISRs submitted by its 
subcontractors using eSRS.
    (d) The Contractor shall submit SSRs using eSRS at http://www.esrs.gov. The reports shall provide information on subcontract 
awards to small business concerns, veteran-owned small business 
concerns, service-disabled veteran-owned small business concerns, 
HUBZone small business concerns, small disadvantaged business 
concerns, women-owned small business concerns, and Historically 
Black Colleges and Universities and Minority Institutions. Purchases 
from a corporation, company, or subdivision that is an affiliate of 
the prime Contractor or subcontractor are not included in these 
reports. Subcontract award data reported by prime contractors and 
subcontractors shall be limited to awards made to their immediate 
next-tier subcontractors. Credit cannot be taken for awards made to 
lower-tier subcontractors unless the Contractor or subcontractor has 
been designated to receive a small business or small disadvantaged 
business credit from a member firm of the Alaska Native Corporations 
or an Indian tribe. Only subcontracts involving performance in the 
U.S. or its outlying areas should be included in these reports.
    (1) This report may be submitted on a corporate, company, or 
subdivision (e.g., plant or division operating as a separate profit 
center) basis, as negotiated in the comprehensive subcontracting 
plan with the Defense Contract Management Agency.
    (2) This report encompasses all subcontracting under prime 
contracts and subcontracts with the Department of Defense, 
regardless of the dollar value of the subcontracts, and is based on 
the negotiated comprehensive subcontracting plan.
    (3) The report shall be submitted semi-annually for the six 
months ending March 31 and the twelve months ending September 30. 
Reports are due 30 days after the close of each reporting period.
    (4) The authority to receipt or reject the SSR resides with the 
Comprehensive Subcontracting Program Division, the Defense Contract 
Management Agency Small Business Center.
    (e) All reports submitted at the close of each fiscal year shall 
include a Year-End Supplementary Report for Small Disadvantaged 
Businesses. The report shall include subcontract awards, in whole 
dollars, to small disadvantaged business concerns by North American 
Industry Classification System (NAICS) Industry Subsector. If the 
data are not available when the year-end SSR is submitted, the prime 
Contractor and/or subcontractor shall submit the Year-End 
Supplementary Report for Small Disadvantaged Businesses within 90 
days of submitting the year-end SSR. The authority to acknowledge 
receipt or reject the year-end report resides with the Comprehensive 
Subcontracting Program Division, the Defense Contract Management 
Agency Small Business Center.
    (f) The failure of the Contractor or subcontractor to comply in 
good faith with the clause of this contract entitled ``Utilization 
of Small Business Concerns,'' or an approved plan required by this 
clause, shall be a material breach of the contract.
    (g) The Contractor shall include, in contracts that offer 
subcontracting possibilities, are expected to exceed $650,000 ($1.5 
million for construction of any public facility), and are required 
to include the clause at 52.219-8, Utilization of Small Business 
Concerns--
    (1) FAR 52.219-9, Small Business Subcontracting Plan, and 
252.219-7003 Small Business Subcontracting Plan (DoD Contracts), 
when the Contracting Officer has included these clauses in the 
contract for purposes of flowdown to subcontractors, or
    (2) 52.219-9, Small Business Subcontracting Plan, with its 
Alternate III, and 252.219-7003, Small Business Subcontracting Plan 
(DoD Contracts), with its Alternate I, when the Contracting Officer 
has included these clauses in the contract for flowdown to 
subcontractors to allow for submission of SF 294s in lieu of ISRs, 
or
    (3) 252.219-7004, Small Business Subcontracting Plan (Test 
Program), in subcontracts with subcontractors that participate in 
the test program described in DFARS 219.702.

(End of clause)

0
18. Section 252.225-7009 is amended by revising the clause date, and 
revising paragraph (a)(10) to read as follows:


252.225-7009  Restriction on Acqusition of Certain Articles Containing 
Specialty Metals.

* * * * *

RESTRICTION ON ACQUISITION OF CERTAIN ARTICLES CONTAINING SPECIALTY 
METALS (JAN 2011)

    (a) * * *
    (10) Qualifying country means any country listed in the 
definition of ``Qualifying country'' at 225.003 of the Defense 
Federal Acquisition Regulation Supplement (DFARS).
* * * * *


252.227-7016  [Amended]

0
19. Section 252.227-7016 is amended by:
0
a. Amending the clause date by removing ``(JUN 1995)'' and adding in 
its place ``(JAN 2011)''; and
0
b. Removing the term ``Innovative'' wherever it occurs in paragraphs 
(a)(1), (a)(2), and (c)(2) and adding in its place the term 
``Innovation''.

252.227-7017  [Amended]

0
20. Section 252.227-7017 is amended by:
0
a. Amending the clause date by removing ``(JUN 1995)'' and adding in 
its place ``(JAN 2011)''; and
0
b. Removing the term ``Innovative'' wherever it occurs in paragraphs 
(a)(1), (a)(2), and (b) and adding in its place the term 
``Innovation''.


252.227-7018  [Amended]

0
21. Section 252.227-7018 is amended by:
0
a. Amending the clause date by removing ``(JUN 1995)'' and adding in 
its place ``(JAN 2011)''; and
0
b. Removing the term ``Innovative'' wherever it occurs in paragraphs 
(f)(2) through (f)(4) and adding in its place the term ``Innovation''.


252.227-7025  [Amended]

0
22. Section 252.227-7025 is amended by:
0
a. Amending the clause date by removing ``(JUN 1995)'' and adding in 
its place ``(JAN 2011)''; and
0
b. Removing the term ``Innovative'' wherever it occurs in paragraph 
(a)(3) and adding in its place the term ``Innovation''.

[FR Doc. 2011-822 Filed 1-19-11; 8:45 am]
BILLING CODE 5001-08-P