Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Rules and Regulations 10191 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This DFARS case is initiated to 

partially implement section 812 of the 

National Defense Authorization Act for 

Fiscal Year 2010. Section 812 is entitled 

‘‘Revision of Defense Supplement 

Relating to Payment of Costs Prior to 

Definitization.’’ Section 812 has been 

partially implemented in DFARS Case 

2008–D034, and this case implements 

the balance of section 812, which makes 

the limitations on payment of costs 

prior to definitization of unpriced 

change orders applicable to all 

categories of undefinitized contractual 

actions, ‘‘including undefinitized task 

orders and delivery orders.’’ The 

implementation is accomplished by 

specifically including the category of 

‘‘task orders and delivery orders’’ in the 

definition of ‘‘contract action’’ at DFARS 

217.7401. 

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. This 

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

804. 

B. Regulatory Flexibility Act 

DoD does not expect that this interim 

rule will 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 impose 

any additional requirements on small 

businesses. Therefore, an initial 

Regulatory Flexibility Analysis has not 

been performed. 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 2009–D035) in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the interim rule does 

not contain any information collection 

requirements that require the approval 

of the Office of Management and Budget 

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

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD) that urgent and compelling 

circumstances exist to promulgate this 

interim rule without prior opportunity 

for public comments. This action is 

necessary because section 812 of the 

National Defense Authorization Act for 

Fiscal Year 2010 became effective upon 

enactment. The date of enactment was 

October 28, 2009. However, pursuant to 

41 U.S.C. 418b, DoD will consider 

public comments received in response 

to this interim rule in the formation of 

the final rule. 

List of Subjects in 48 CFR Part 217 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 217 is 

amended as follows: 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 1. The authority citation for 48 CFR 

part 217 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 217.7401 is amended by 

revising paragraph (a)(2) and adding 

paragraph (a)(3) to read as follows: 

217.7401 Definitions. 

* * * * * 

(a) * * * 

(2) It includes task orders and 

delivery orders. 

(3) It does not include change orders, 

administrative changes, funding 

modifications, or any other contract 

modifications that are within the scope 

and under the terms of the contract, e.g., 

engineering change proposals, value 

engineering change proposals, and over 

and above work requests as described in 

Subpart 217.77. For policy relating to 

definitization of change orders, see 

243.204–70. 

* * * * * 

[FR Doc. 2010–4731 Filed 3–4–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 237 and 252 

RIN 0750–AG52 

Defense Federal Acquisition 

Regulation Supplement (DFARS); 

DFARS Case 2009–D017, Continuation 

of Essential Contractor Services 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add policy and a contract 

clause requiring that contractors 

providing essential contractor services, 

as determined by the requiring activity, 

shall be prepared to continue such 

services during periods of crisis. 

DATES: Effective Date: March 5, 2010. 

Comment Date: Comments on this 

interim rule should be submitted in 

writing to the address shown below on 

or before May 4, 2010, to be considered 

in the formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D017, 

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–D017 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. 

Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian E. Thrash, 703–602–0310. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This action is necessary to ensure that 

essential contractor services are not 

interrupted. The current changing threat 

environment, particularly under the 

additional challenges caused by such 

crises as hurricanes, tornados, 


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10192 Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Rules and Regulations 

earthquakes, blizzards, floods, or 

pandemic influenza, has increased the 

need for continuity of operations 

capabilities and plans that enable 

agencies to continue their essential 

functions across a broad spectrum of 

emergencies and crises. DoD has 

established a new requirement for 

contractors to submit their plans to 

ensure continuation of essential 

contractor services that support 

mission-essential functions during a 

crisis situation. 

DoD Instruction (DoDI) 3020.37, 

Continuation of Essential DoD 

Contractor Services During Crises, 

provides the basis for the definition of 

‘‘essential contractor service,’’ which 

means a service provided by a firm or 

individual under contract to DoD to 

support mission-essential functions, 

such as support of vital systems, 

including ships owned, leased, or 

operated in support of military missions 

or roles at sea; associated support 

activities, including installation, 

garrison, and base support services; and 

similar services provided to foreign 

military sales customers under the 

Security Assistance Program. Services 

are essential if the effectiveness of 

defense systems or operations has the 

potential to be seriously impaired by the 

interruption of such services, as 

determined by the appropriate 

functional commander or equivalent. As 

a general rule, the designation of 

services as essential contractor services 

will not apply to an entire contract but 

will apply only to those service 

functions that have been specifically 

identified as essential contractor 

services by the functional commander 

or equivalent. 

DoD is adding a new Subpart 237.76, 

Continuation of Essential Contractor 

Services, and the new clause at 

252.237–7023, Continuation of Essential 

Contractor Services. This clause is 

required in solicitations and contracts 

for services that are in support of 

mission-essential functions. In 

accordance with FAR 1.108(d)(3), 

contracting officers may, at their 

discretion, include these changes in any 

existing contract with appropriate 

consideration. 

This regulatory action was subject to 

review under Section 6(b) 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. 

B. Regulatory Flexibility Act 

DoD does not expect this interim 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 allows equitable 

adjustment for additional costs that are 

incurred during a crisis situation. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

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 2009–D017) in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. Chapter 35) applies, because this 

interim rule contains an information 

collection requirement. DoD invites 

comments on the following aspects of 

the interim rule: (a) Whether the 

collection of information is necessary 

for the proper performance of the 

functions of DoD, including whether the 

information will have practical utility; 

(b) the accuracy of the estimate of the 

burden of the information collection; (c) 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and (d) ways to minimize the 

burden of the information collection on 

respondents, including the use of 

automated collection techniques or 

other forms of information technology. 

The following is a summary of the 

information collection requirement. 

Title: Defense Federal Acquisition 

Regulation Supplement (DFARS) 2009– 

D017; Continuation of Essential 

Contractor Services. 

Type of Request: New collection. 

Number of Respondents: 7,600. 

Responses per Respondents: 1.25. 

Annual Responses: 9,500. 

Average Burden per Response: 2. 

Total Annual Burden Hours: 19,000. 

Needs and Uses: DoD needs this 

information to ensure essential 

contractor functions are performed for 

continuity of operations. 

Affected Public: Businesses or other 

for-profit institutions. 

Frequency: On occasion. 

Respondent’s Obligation: Required to 

obtain contract. 

Written comments and 

recommendations on the information 

collection proposal should be sent to 

Ms. Jasmeet Seehra at the Office of 

Management and Budget, Desk Officer 

for DoD, Room 10236, New Executive 

Office Building, Washington, DC 20503, 

with a copy to the Defense Acquisition 

Regulations System, Attn: Mr. Julian 

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

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments can be received from 30 to 60 

days after the date of this notice, but 

comments to OMB will be most useful 

if received by OMB within 30 days after 

the date of this notice. 

To request more information on this 

information collection proposal or to 

obtain a copy of the proposal and 

associated collection instruments, 

please write to the Defense Acquisition 

Regulations System, Attn: Mr. Julian 

Thrash. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD) that urgent and compelling 

reasons exist to promulgate this interim 

rule without prior opportunity for 

public comments. This action is 

necessary to ensure that essential 

contractor services are not interrupted 

by crises such as those caused by 

hurricanes, tornados, earthquakes, 

blizzards, floods, or pandemic 

influenza. DoD Instruction (DoDI) 

3020.37, Continuation of Essential DoD 

Contractor Services During Crises, 

established the basis for implementing 

policy, assigning responsibilities, and 

prescribing procedures, to provide a 

reasonable assurance for the 

continuation of essential contractor 

services (see http://www.dtic.mil/whs/ 

directives/corres/pdf/302037p.pdf). This 

DoDI requires DoD components to rely 

on the most effective mix of the total 

force, cost and other factors considered, 

including Active, Reserve, civilian, 

host-nation, and contract resources 

necessary to fulfill assigned peacetime 

and wartime missions. DoD must take 

action now to ensure essential 

contractor services are ready to support 

a total force response. The impact to 

operations posed by not issuing an 

interim rule presents an unacceptable 

risk to DoD’s mission to provide a total 

force response during crisis situations. 

This interim rule clarifies the limited 

use of the clause for only those essential 

contractor services determined by the 

functional commander, or equivalent, to 

be necessary to prevent the impairment 

of defense systems or operations. 

Furthermore, this interim rule also 

clarifies that an equitable adjustment 

may be appropriate for an increase or 

decrease in the cost incurred in 

continuing the performance of essential 

contractor services during a crisis 

situation. 


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Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Rules and Regulations 10193 

List of Subjects in 48 CFR Parts 237 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 237 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 237 and 252 continues to read as 

follows: 

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

chapter 1 

PART 237—SERVICE CONTRACTING 

■ 2. Subpart 237.76 is added to read as 

follows: 

SUBPART 237.76—CONTINUATION OF 

ESSENTIAL CONTRACTOR SERVICES 

Sec. 

237.7600 Scope. 

237.7601 Definitions. 

237.7602 Policy. 

237.7603 Contract clause. 

SUBPART 237.76—CONTINUATION OF 

ESSENTIAL CONTRACTOR SERVICES 

237.7600 Scope. 

This subpart prescribes procedures for 

the acquisition of essential contractor 

services, which support missionessential functions. 

237.7601 Definitions. 

As used in this subpart— 

Essential contractor service means a 

service provided by a firm or individual 

under contract to DoD to support 

mission-essential functions, such as 

support of vital systems, including ships 

owned, leased, or operated in support of 

military missions or roles at sea; 

associated support activities, including 

installation, garrison, and base support 

services; and similar services provided 

to foreign military sales customers 

under the Security Assistance Program, 

that are essential if the effectiveness of 

defense systems or operations has the 

potential to be seriously impaired by the 

interruption of these services, as 

determined by the appropriate 

functional commander or equivalent. 

Mission-essential functions means 

those organizational activities that must 

be performed under all circumstances to 

achieve DoD component missions or 

responsibilities, the failure of which 

would significantly affect DoD’s ability 

to provide vital services or exercise 

authority, direction, and control. 

237.7602 Policy. 

(a) Contractors providing services 

designated as essential contractor 

services by a requiring activity shall be 

prepared to continue providing such 

services, in accordance with the terms 

and conditions of their contracts, during 

periods of crisis. As a general rule, the 

designation of services as essential 

contractor services will not apply to an 

entire contract but will apply only to 

those service functions that have been 

specifically identified as essential 

contractor services by the functional 

commander or equivalent. 

(b) Contractors who provide 

Government-determined essential 

contractor services shall have a written 

plan to ensure the continuation of these 

services in crisis situations. Contracting 

officers shall consult with a functional 

manager to assess the sufficiency of the 

contractor-provided written plan. 

Contractors will activate such plans 

only during periods of crisis, as directed 

by the appropriate functional 

commander or equivalent. 

(c) The contracting officer shall follow 

the procedures at PGI 207.105(b)(20)(C) 

in preparing an acquisition plan. 

237.7603 Contract clause. 

Use the clause at 252.237–7023, 

Continuation of Essential Contractor 

Services, in solicitations and contracts 

for services that are in support of 

mission-essential functions. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 2. Section 252.237–7023 is added to 

read as follows: 

252.237–7023, Continuation of Essential 

Contractor Services. 

As prescribed in 237.7603, use the 

following clause: 

Continuation of Mission Essential Functions 

(Date) 

(a) The Government has identified all or a 

portion of the services performed under this 

contract as essential contractor services in 

support of mission-essential functions. The 

contractor-provided services that have been 

determined to be essential contractor services 

in support of mission-essential functions are 

listed in attachment _, 

Mission-Essential Contractor Services, 

dated ____. 

(b) The Contractor shall provide a written 

plan for continuing the performance of 

essential contractor services identified in 

paragraph (a) of this section during a crisis. 

(1) The Contractor shall identify in the 

plan the provisions made for the acquisition 

of essential personnel and resources, if 

necessary, for continuity of operations for up 

to 30 days or until normal operations can be 

resumed; 

(2) The plan must, at a minimum, 

address— 

(i) Challenges associated with maintaining 

essential contractor services during an 

extended event, such as a pandemic that 

occurs in repeated waves; 

(ii) The time lapse associated with the 

initiation of the acquisition of essential 

personnel and resources and their actual 

availability on site; 

(iii) The components, processes, and 

requirements for the identification, training, 

and preparedness of personnel who are 

capable of relocating to alternate facilities or 

performing work from home; 

(iv) Any established alert and notification 

procedures for mobilizing identified 

‘‘essential contractor service’’ personnel; and 

(v) The approach for communicating 

expectations to contractor employees 

regarding their roles and responsibilities 

during a crisis. 

(3) The Contractor shall maintain and 

update its plan as necessary and adhere to its 

requirements throughout the contract term. 

The Contractor shall not materially alter the 

plan without the Contracting Officer’s 

consent. 

(4) As directed by the Contracting Officer, 

the Contractor shall participate in training 

events, exercises, and drills associated with 

Government efforts to test the effectiveness of 

continuity of operations procedures and 

practices. 

(c) In the event the Contractor anticipates 

not being able to perform any of the essential 

contractor services identified in paragraph (a) 

of this section during a crisis situation, the 

Contractor shall notify the Contracting 

Officer or other designated representative as 

expeditiously as possible and use its best 

efforts to cooperate with the Government in 

the Government’s efforts to maintain the 

continuity of operations. 

(d) The Government reserves the right in 

such crisis situations to use Federal 

employees of other agencies or contract 

support from other contractors or to enter 

into new contracts for essential contractor 

services. Any new contracting efforts would 

be conducted in accordance with OFPP 

letter, ‘‘Emergency Acquisitions’’ May 2007 

and FAR and DFARS subparts 18 and 218, 

respectively, or any other subsequent 

emergency guidance issued. 

(e) Changes. The Contractor shall segregate 

and separately identify all costs incurred in 

continuing performance of essential services 

in a crisis situation. The Contractor shall 

notify the Contracting Officer of an increase 

or decrease in costs within ninety days after 

continued performance has been directed by 

the Contracting Officer, or within any 

additional period that the Contracting Officer 

approves in writing, but not later than the 

date of final payment under the contract. The 

Contractor’s notice shall include the 

Contractor’s proposal for an equitable 

adjustment and any data supporting the 

increase or decrease in the form prescribed 

by the Contracting Officer. The parties shall 

negotiate an equitable price adjustment to the 

contract price as soon as is practicable after 

receipt of the Contractor’s proposal. 

The Contractor shall include the substance 

of this clause, including this paragraph (f), in 

subcontracts for the essential services. 

(End of Clause) 

[FR Doc. 2010–4730 Filed 3–4–10; 8:45 am] 

BILLING CODE 5001–08–P 


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