71646 Federal Register / Vol. 75, No. 226 / Wednesday, November 24, 2010 / Proposed Rules 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204 and 252 

RIN 0750–AG39 

Defense Federal Acquisition 

Regulation Supplement; Annual 

Representations and Certifications 

(DFARS Case 2009–D011) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

conform it to changes in the Federal 

Acquisition Regulation (FAR) relating to 

annual representations and 

certifications. 

DATES: Comment date: Comments on 

this proposed rule should be submitted 

in writing to the address shown below 

on or before January 24, 2011, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D011, 

using any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D011 in the subject 

line of the message. 

Fax: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Mr. Julian E. Thrash, 

OUSD(AT&L)DPAP(DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

To confirm receipt of your 

comment(s), please check http:// 

www.regulations.gov approximately two 

to three days after submission to verify 

posting (except allow 30 days for 

posting of comments submitted by 

mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian E. Thrash, 703–602–0310. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DFARS 252.204–7007, Alternate A, 

Annual Representations and 

Certifications, was structured to 

supplement paragraph (d) of FAR 

52.204–8, Annual Representations and 

Certifications (formerly paragraph (c)). 

FAR 52.204–8 was changed to add a 

new paragraph (c), which indicates the 

applicable representations and 

certifications in ORCA. The 

representations and certifications in 

ORCA are those provisions and clauses 

listed in the prescribing language 

contained in FAR 4.1202. The change 

also requires the DFARS representations 

and certifications in ORCA to be listed 

in DFARS 252.204–7007. The DFARS 

representations and certifications are 

those provisions and clauses contained 

in the prescribing language listed in 

DFARS 204.1202. 

Further, DFARS 252.212–7000, 

Offeror Representations and 

Certifications–Commercial Items, 

should be removed from DFARS 

204.1202(2)(ii). The prescribing 

language requires inclusion of this 

provision in all solicitations for 

commercial items exceeding the 

simplified acquisition threshold. 

Further, the inclusion of 252.204–7007, 

Alternate A, Annual Representations 

and Certifications, is applicable when 

the provision at FAR 52.204–8, Annual 

Representations and Certifications, is 

included in solicitations, except for 

commercial item solicitations. 

In addition, the proposed changes 

include the following: 

• Delete the reference to 252.216– 

7003, and 252.239–7011 from DFARS 

204.1202, because these are clauses, not 

provisions. 

• Revise DFARS 252.204–7007 to 

incorporate the listing of representations 

or certifications in ORCA that are 

applicable to the solicitation. 

• Address in paragraph (d) of DFARS 

252.204–7007 the applicability of 

representations and certifications in 

ORCA, as set forth in provisions and 

clauses at DFARS 252.209–7005, 

252.225–7000, 252.225–7020, 252.225– 

7022, 252.225–7031, 252.225–7035, 

252.225–7042, 252.229–7003, 252.229– 

7005, and 252.247–7022. 

II. Executive Order 12866 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30,1993. 

III. Regulatory Flexibility Act 

DoD does not expect this proposed 

rule 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., because the change is to internal 

Government operating procedures. 

Therefore, an initial regulatory 

flexibility analysis has not been 

performed. DoD invites comments from 

small entities and other interested 

parties. 

DoD will also consider comments 

from small entities concerning the 

affected DFARS subparts in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C 601, et seq., 

(DFARS case 2009–D011), in 

correspondence. 

IV. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 204 and 

252 

Government procurement. 

Clare M. Zebrowski, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR parts 204 and 252 as follows: 

1. The authority citation for 48 CFR 

parts 204 and 252 continues to read as 

follows: 

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

chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

2. Amend section 204.1202 by 

removing paragraphs (2)(ii), (2)(iii), and 

(2)(xi); redesignating paragraphs (2)(iv) 

and (2)(v) as paragraphs (2)(ii) and 

(2)(iii), respectively; redesignating 

paragraphs (2)(vi) through (2)(x) as 

paragraphs (2)(v) through (2)(ix), 

respectively; redesignating paragraph 

(2)(xii) as paragraph (2)(x) and adding 

paragraph (2)(iv), to read as follows: 

204.1202 Solicitation provision and 

contract clause. 

* * * * * 

(2) * * * 

(iv) 252.225–7022, Trade Agreements 

Certificate–Inclusion of Iraqi End 

Products. 

* * * * * 

3. Revise section 252.204–7007 to 

read as follows: 

252.204–7007 Alternate A, Annual 

Representations and Certifications. 

ALTERNATE A, ANNUAL 

REPRESENTATIONS AND 

CERTIFICATIONS 

(DATE) 

As prescribed in 204.1202, substitute the 

following paragraphs (d) and (e) for 

paragraph (d) of the provision at FAR 

52.204–8: 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 226 / Wednesday, November 24, 2010 / Proposed Rules 71647 

(d) The following representations or 

certifications in ORCA are applicable to this 

solicitation as indicated: 

(i) 252.209–7005, Reserve Officer Training 

Corps and Military Recruiting on Campus. 

This clause applies to all solicitations and 

contracts with institutions of higher 

education. 

(ii) 252.225–7000, Buy American Act— 

Balance of Payments Program Certificate. 

This provision applies to solicitations 

containing the clause at 252.225–7001, Buy 

American Act and Balance of Payments 

Program. 

(iii) 252.225–7020, Trade Agreements 

Certificate. This provision applies to 

solicitations containing the clause at 

252.225–7021, Trade Agreements. 

(iv) 252.225–7022, Trade Agreements 

Certificate—Inclusion of Iraqi End Products. 

This provision applies to solicitations 

containing the clause at 252.225–7021, Trade 

Agreements, used with its Alternate I. 

(v) 252.225–7031, Secondary Arab Boycott 

of Israel. This provision applies to all 

solicitations unless an exception applies or a 

waiver has been granted in accordance with 

225.7604. 

(vi) 252.225–7035, Buy American Act— 

Free Trade Agreements—Balance of 

Payments Program Certificate. This provision 

applies to solicitations that include the 

clause at 252.225–7036, Buy American Act— 

Free Trade Agreements—Balance of 

Payments Program. Alternate I applies when 

the clause at 252.225–7036 is used with its 

Alternate I. 

(vii) 252.225–7042, Authorization to 

Perform. This provision applies to 

solicitations when contract performance will 

be wholly or in part in a foreign country. 

(viii) 252.229–7003, Tax Exemptions 

(Italy). This clause applies to solicitations 

and contracts when contract performance 

will be in Italy. 

(ix) 252.229–7005, Tax Exemptions 

(Spain). This clause applies to solicitations 

and contracts when contract performance 

will be in Spain. 

(x) 252.247–7022, Representation of Extent 

of Transportation by Sea. This provision 

applies to all solicitations except— 

(A) Those for direct purchase of ocean 

transportation services; or 

(B) Those with an anticipated value at or 

below the simplified acquisition threshold. 

(e) The offeror has completed the annual 

representations and certifications 

electronically via the Online Representations 

and Certifications Application (ORCA) Web 

site at https://orca.bpn.gov/. After reviewing 

the ORCA database information, the offeror 

verifies by submission of the offer that the 

representations and certifications currently 

posted electronically that apply to this 

solicitation as indicated in paragraphs (d) 

and (e) of this provision have been entered 

or updated within the last 12 months, are 

current, accurate, complete, and applicable to 

this solicitation (including the business size 

standard applicable to the NAICS code 

referenced for this solicitation), as of the date 

of this offer, and are incorporated in this offer 

by reference (see FAR 4.1201); except for the 

changes identified below [offeror to insert 

changes, identifying change by clause 

number, title, date]. These amended 

representation(s) and/or certification(s) are 

also incorporated in this offer and are 

current, accurate, and complete as of the date 

of this offer. 

FAR/DFARS Clause # Title Date Change 

Any changes provided by the offeror are 

applicable to this solicitation only, and do 

not result in an update to the representations 

and certifications posted on ORCA. 

[FR Doc. 2010–29495 Filed 11–23–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 215 

Defense Federal Acquisition 

Regulation Supplement; Discussions 

Prior to Contract Award (DFARS Case 

2010–D013) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

strongly encourage discussions prior to 

award for source selections of 

procurements estimated at $100 million 

or more. The proposed change was 

recommended by the DoD Source 

Selection Joint Analysis Team. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

January 24, 2011, to be considered in 

the formation of the final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2010–D013, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2010–D013 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Meredith 

Murphy, OUSD (AT&L) DPAP (DARS), 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

To confirm receipt of your 

comment(s), please check http:// 

www.regulations.gov approximately two 

to three days after submission to verify 

posting (except allow 30 days for 

posting of comments submitted by 

mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. Telephone 703–602–1302; 

facsimile 703–602–0350. Please cite 

DFARS Case 2010–D013. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This DFARS case was initiated at the 

request of the DoD Source Selection 

Joint Analysis Team (JAT), chartered by 

the Deputy Under Secretary of Defense 

(Acquisition, Technology, and Logistics) 

to revise the DoD source selection 

procedures (which are being published 

separately). 

In their examination of current source 

selection processes utilized within the 

DoD, members of the JAT determined 

that there is a significant positive 

correlation between high-dollar value 

source selections conducted without 

discussions and protests sustained. 

Therefore, to improve the quality of 

high-dollar value, more complex source 

selections and reduce turbulence and 

inefficiency resulting from sustained 

protests, the JAT recommended that 

discussions prior to award be strongly 

encouraged for source selections with a 

dollar value of $100 million or more. 

DoD research has indicated that 

holding meaningful discussions with 

industry prior to contract award on 

high-dollar value, complex 

requirements improves both industry’s 

understanding of solicitation 

requirements and the Government’s 

understanding of industry issues. By 

identifying and discussing these issues 

prior to submission of final proposals, 

the Government is often able to issue 

clarifying language. The modified 

requirements documentation allows 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1