38050 Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Rules and Regulations 

(b) Be a firm-fixed-price contract, or a 

fixed-price contract with an economic 

price adjustment clause; 

(c) Be in an amount not in excess of 

$50 million; 

(d) Provide— 

(1) For the delivery of an initial lot of 

production quantities of completed 

items not later than nine months after 

the date of the award of such contract; 

and 

(2) That failure to make delivery as 

provided for under paragraph (d)(1) may 

result in termination for cause; and 

(e) Be— 

(1) Exempt from the requirement to 

submit certified cost or pricing data; 

(2) Exempt from the cost accounting 

standards under section 26 of the Office 

of Procurement Policy Act (41 U.S.C. 

1502); and 

(3) Subject to the requirement to 

provide data other than certified cost or 

pricing data for the purpose of price 

reasonableness determinations. 

212.7102–2 Reporting requirements. 

Departments and agencies shall 

prepare a consolidated annual report to 

provide information about contracts 

awarded under this pilot authority. The 

report shall be submitted to the Office 

of the Deputy Director, Defense 

Procurement and Acquisition Policy 

(Contract Policy and International 

Contracting), by October 31 each year in 

accordance with the procedures at PGI 

212.7102. See PGI 212.7102 for annual 

reporting format. 

212.7102–3 Sunset of the pilot authority. 

(a) The authority to carry out the pilot 

program described in this subpart 

expires on January 6, 2016. 

(b) The expiration under paragraph (a) 

of this section of the authority to carry 

out the pilot program will not affect the 

validity of any contract awarded under 

the pilot program before the expiration 

of the pilot program under that 

paragraph. 

212.7103 Solicitation provision. 

Use the provision at 252.212–7002, 

Pilot Program for Acquisition of 

Military-Purpose Nondevelopmental 

Items, in all solicitations that meet the 

applicability criteria of 212.7102–1 for 

this pilot program. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Amend part 252 by adding new 

section 252.212–7002 to read as follows: 

252.212–7002 Pilot Program for 

Acquisition of Military-Purpose 

Nondevelopmental Items. 

As prescribed in 212.7103, use the 

following provision: 

PILOT PROGRAM FOR ACQUISITION 

OF MILITARY-PURPOSE 

NONDEVELOPMENTAL ITEMS (JUN 

2011) 

(a) Definitions. As used in this provision— 

Military-purpose nondevelopmental item 

means a nondevelopmental item that meets 

a validated military requirement, as 

determined in writing by the responsible 

program manager, and has been developed 

exclusively at private expense. An item shall 

not be considered to be developed at private 

expense if development of the item was paid 

for in whole or in part through— 

(1) Independent research and development 

costs or bid and proposal costs, per the 

definition in FAR 31.205–18, that have been 

reimbursed directly or indirectly by a Federal 

agency or have been submitted to a Federal 

agency for reimbursement; or 

(2) Foreign government funding. 

‘‘Nondevelopmental item’’ is defined in 

FAR 2.101 and for the purpose of this subpart 

also includes previously developed items of 

supply that require modifications other than 

those customarily available in the 

commercial marketplace if such 

modifications are consistent with the 

requirement of DFARS 212.7102–2(d)(1). 

Nontraditional defense contractor means 

an entity that is not currently performing and 

has not performed, for at least the one-year 

period preceding the solicitation of sources 

by the Department of Defense for the 

procurement or transaction, any of the 

following for the Department of Defense— 

(1) Any contract or subcontract that is 

subject to full coverage under the cost 

accounting standards prescribed pursuant to 

Section 26 of the Office of Federal 

Procurement Policy Act (41 U.S.C. section 

1502) and the regulations implementing such 

section; or 

(2) Any other contract in excess of the 

certified cost or pricing data threshold under 

which the contractor is required to submit 

certified cost or pricing data. 

(b) Notice. This is a procurement action 

under section 866 of the National Defense 

Authorization Act for Fiscal Year 2011, Pilot 

Program for Acquisition of Military-Purpose 

Nondevelopmental Items, and is subject to 

the limitations outlined in DFARS 212.7102. 

(c) Representation. By submission of its 

offer, the offeror represents that it is a 

nontraditional defense contractor. 

(End of provision) 

* * * * * 

[FR Doc. 2011–16316 Filed 6–28–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 215 

RIN 0750–AH30 

Defense Federal Acquisition 

Regulation Supplement; Management 

of Manufacturing Risk in Major 

Defense Acquisition Programs (DFARS 

Case 2011–D031) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

to implement section 812 of the 

National Defense Authorization Act for 

Fiscal Year 2011. Section 812(b)(5) 

instructs DoD to issue guidance that, at 

a minimum, shall require appropriate 

consideration of the manufacturing 

readiness and manufacturing-readiness 

processes of potential contractors and 

subcontractors as a part of the source 

selection process for major defense 

acquisition programs. 

DATES: Effective June 29, 2011. 

Comments on the interim rule should be 

submitted in writing to the address 

shown below on or before August 29, 

2011 to be considered in the formation 

of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2011–D031, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting 

‘‘DFARS Case 2011–D031’’ under the 

heading ‘‘Enter keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘DFARS Case 2011–D031.’’ Follow 

the instructions provided at the ‘‘Submit 

a Comment’’ screen. Please include your 

name, company name (if any), and 

‘‘DFARS Case 2011–D031’’ on your 

attached document. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2011–D031 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Mr. Dustin 

Pitsch, 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), 

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Federal Register / Vol. 76, No. 125 / Wednesday, June 29, 2011 / Rules and Regulations 38051 

please check 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. 

Dustin Pitsch, telephone 703 602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This interim rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) subpart 215.3, 

Source Selection. It amends DFARS 

215.304(c) by adding paragraph (iv) to 

state that the manufacturing readiness 

and manufacturing-readiness processes 

of potential contractors and 

subcontractors shall be considered as a 

part of the source selection process for 

major defense acquisition programs. 

II. Executive Orders 12866 and 13563 

Executive Orders 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). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This is a 

significant regulatory action and, 

therefore, 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. 

III. Regulatory Flexibility Act 

DoD has performed an initial 

regulatory flexibility analysis consistent 

with 5 U.S.C. 603. The interim rule will 

apply to DoD Major Defense Acquisition 

Program contractors and subcontractors. 

As such, it is not expected that this rule 

will have a significant impact on a 

significant number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

However, an Initial Regulatory 

Flexibility Analysis has been prepared 

and is summarized as follows. 

This interim rule amends the DFARS 

to implement section 812 of the 

National Defense Authorization Act for 

FY 2011 (Pub. L. 111–383) (10 U.S.C. 

2430 note). Section 812(b)(5) requires 

appropriate consideration of the 

manufacturing readiness and 

manufacturing readiness processes of 

potential contractors and subcontractors 

as a part of the source selection process 

for major defense acquisition programs. 

The rule will apply to DoD Major 

Defense Acquisition Program 

contractors and subcontractors. Most 

major defense acquisition programs are 

awarded to large concerns as they are of 

a scope too large for any small business 

to perform. As such, it is not expected 

that this rule will have a significant 

impact on a significant number of small 

entities. 

The interim rule imposes no 

reporting, recordkeeping, or other 

information collection requirements. 

The proposed rule does not duplicate, 

overlap, or conflict with any other 

Federal rules. There are no known 

significant alternatives to the rule that 

would meet the requirements of the 

statute. 

DoD invites comments from small 

businesses 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. 

601. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2011–D031) in 

correspondence. 

IV. Paperwork Reduction Act 

The rule does not impose 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). 

V. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. This interim rule implements 

section 812 of the National Defense 

Authorization Act for Fiscal Year 2011, 

enacted on January 7, 2011. Section 812 

requires implementation within 180 

days, by July 6, 2011, and an interim 

rule is required to meet the 

implementation date. This action is 

necessary in order to require contracting 

officers to consider the manufacturing 

readiness and manufacturing-readiness 

processes of potential contractors and 

subcontractors as a part of the source 

selection process for major defense 

acquisition programs. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Part 215 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 215 is 

amended as follows: 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 1. The authority citation for 48 CFR 

part 215 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

■ 2. Amend section 215.304 by adding 

paragraph (c)(iv) to read as follows: 

215.304 Evaluation factors and significant 

subfactors. 

(c) * * * 

(iv) In accordance with section 812 of 

the National Defense Authorization Act 

for Fiscal Year 2011, consider the 

manufacturing readiness and 

manufacturing-readiness processes of 

potential contractors and subcontractors 

as a part of the source selection process 

for major defense acquisition programs. 

[FR Doc. 2011–16319 Filed 6–28–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 252 

RIN 0750–AG93 

Defense Federal Acquisition 

Regulation Supplement; Definition of 

Sexual Assault (DFARS Case 2010– 

D023) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule to 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

ensure contractor employees 

accompanying U.S. Armed Forces are 

made aware of the DoD definition of 

sexual assault as defined in DoD 

Directive 6495.01, Sexual Assault 

Prevention and Response Program, and 

that many of the offenses addressed in 

the definition are covered under the 

Uniform Code of Military Justice. 

Further, sexual assault offenses in the 

definition, which are not covered by the 

Uniform Code of Military Justice, may 

nevertheless have consequences to 

contractor employees under DFARS 

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