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
71648 Federal Register / Vol. 75, No. 226 / Wednesday, November 24, 2010 / Proposed Rules 

1Throughout this document, HIC refers to the 

head injury criterion computed using a 36 

millisecond (msec) time interval. 

industry to tailor proposals and better 

describe the offeror’s intended 

approach, increases the probability that 

the offeror’s proposal satisfies 

Government requirements, and often 

results in better contract performance. 

Asking contracting officers to conduct 

discussions with industry provides a 

reasonable approach to recognizing and 

addressing valid industry concerns and 

a constructive alternative to protests 

resulting from industry frustration over 

misunderstood requirements. 

DoD notes the potential disadvantages 

of this proposed change in increased 

time to complete the source-selection 

process and additional workload for 

acquisition staff. However, failure to 

hold discussions in high-dollar value, 

more complex source selections has led 

to misunderstandings of Government 

requirements by industry and flaws in 

the Government’s evaluation of offerors’ 

proposals, leading to protests that have 

been sustained, and ultimately 

extending source-selection timelines. 

DoD proposes to decrease the possibility 

of this outcome by making such 

discussions the default procedure for 

source selections for procurements at or 

above $100 million. However, use of the 

term ‘‘should,’’ as defined in FAR part 2, 

provides that the expected course of 

action need not be followed if 

inappropriate for a particular 

circumstance. 

II. Executive Order 12866 

This is not a significant regulatory 

action and, therefore, is not subject to 

review under Section 6 of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

III. Regulatory Flexibility Act 

DoD does not expect this 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 rule does not add to or 

delete existing regulations on 

discussions for the vast majority of DoD 

procurements, i.e., those under $100 

million. For the largest procurements of 

at least $100 million, any increase in 

discussions is anticipated to benefit all 

offerors, including small businesses, by 

providing them an opportunity to 

explain details of the offer and market 

their particular capabilities. 

An initial regulatory flexibility 

analysis has been prepared and is 

summarized as follows: The opportunity 

to participate in discussions increases 

the probability of selection for award, as 

described above. In fiscal year 2009, the 

most recent fiscal year for which data is 

available, DoD awarded 620 new 

contracts and 252 new task orders/ 

delivery orders of $100 million or more 

to small businesses. While there is no 

way to determine how many more small 

businesses may have been selected for 

high-dollar value DoD awards had 

discussions been held, it is reasonable 

to assume that the number would have 

been higher, thus providing small 

businesses with a net positive benefit. 

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 2010–D013) in 

correspondence. 

IV. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because there are no 

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 Part 215 

Government procurement. 

Clare M. Zebrowski, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR part 215 as follows: 

1. The authority citation for 48 CFR 

part 215 continues to read as follows: 

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

chapter 1. 

PART 215—CONTRACTING BY 

NEGOTIATION 

2. Add sections 215.203–71 and 

215.209 to read as follows: 

215.203–71 Requests for proposals— 

procurements of $100 million or more. 

For source selections when the 

procurement is $100 million or more, 

contracting officers should conduct 

discussions with offerors in the 

competitive range. 

215.209 Solicitation provisions and 

contract clauses. 

(a) For source selections when the 

procurement is $100 million or more, 

contracting officers should use the 

provision at 52.215–1, Instructions to 

Offerors—Competitive Acquisition, with 

its Alternate I. 

[FR Doc. 2010–29510 Filed 11–23–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

Docket No. NHTSA–2010–0158 

Regulation Identifier No. (RIN) 2127–AJ44 

Federal Motor Vehicle Safety 

Standards, Child Restraint Systems; 

Hybrid III 10-Year-Old Child Test 

Dummy 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Supplemental notice of 

proposed rulemaking (SNPRM). 

SUMMARY: This document proposes to 

amend Federal Motor Vehicle Safety 

Standard (FMVSS) No. 213, Child 

Restraint Systems, regarding a Hybrid III 

10-year-old child test dummy that the 

agency seeks to use in the compliance 

test procedures of the standard. This 

document supplements a 2005 notice of 

proposed rulemaking (NPRM) and a 

2008 SNPRM previously published in 

this rulemaking (RIN 2127–AJ44) 

regarding this test dummy. In the 2005 

NPRM, in response to Anton’s Law, 

NHTSA proposed to adopt the 10-yearold child test dummy into FMVSS No. 

213 to test child restraints for older 

children. Subsequently, to address 

variation that was found in dummy 

readings due to chin-to-chest contact, 

NHTSA published the 2008 SNPRM to 

propose a NHTSA-developed procedure 

for positioning the test dummy in beltpositioning seats. Comments on the 

SNPRM objected to the positioning 

procedure, and some suggested an 

alternative procedure developed by the 

University of Michigan Transportation 

Research Institute (UMTRI). Today’s 

SNPRM proposes to use the UMTRI 

procedure to position the test dummy 

rather than the NHTSA-developed 

procedure. We note that the 10-year-old 

child dummy may sometimes 

experience stiff contact between its chin 

and upper sternal bib region which may 

result in an unrealistically high value of 

the head injury criterion (HIC) 1

referenced in the standard. Accordingly, 

NHTSA proposes that the dummy’s HIC 

measurement will not be used to assess 

the compliance of the tested child 

restraint. This SNPRM also proposes 

other amendments to FMVSS No. 213, 

including a proposal to permit NHTSA 

to use, at the manufacturer’s option, the 


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