Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 58149 

(g) * * * 

(5) If the Contractor fails to respond 

to the Contracting Officer’s request for 

information or additional information 

under paragraph (g)(1) of this clause, the 

Contracting Officer will issue a final 

decision, in accordance with paragraph 

(f) of this clause and the Disputes clause 

of this contract, pertaining to the 

validity of the asserted restriction. 

* * * * * 

■ 13. Amend 252.227–7037 by— 

■ (a) Amending the introductory text by 

removing ‘‘227.7102–3(c)’’ and adding 

in its place ‘‘227.7102–4(c)’’; 

■ (b) Amending the clause date by 

removing ‘‘(SEP 1999)’’ and adding in 

its place ‘‘(SEP 2011)’’; and 

■ (c) Revising paragraphs (b), (c), (f), and 

(l) to read as follows: 

252.227–7037 Validation of restrictive 

markings on technical data. 

* * * * * 

(b) Presumption regarding 

development exclusively at private 

expense. 

(1) Commercial items. For 

commercially available off-the-shelf 

items (defined at 41 U.S.C. 104) in all 

cases, and for all other commercial 

items except as provided in paragraph 

(b)(2) of this clause, the Contracting 

Officer will presume that a Contractor’s 

asserted use or release restrictions are 

justified on the basis that the item, 

component, or process was developed 

exclusively at private expense. The 

Contracting Officer shall not challenge 

such assertions unless the Contracting 

Officer has information that 

demonstrates that the item, component, 

or process was not developed 

exclusively at private expense. 

(2) Major systems. The presumption of 

development exclusively at private 

expense does not apply to major 

systems or subsystems or components 

thereof, except for commercially 

available off-the-shelf items (which are 

governed by paragraph (b)(1) of this 

clause). When the Contracting Officer 

challenges an asserted restriction 

regarding technical data for a major 

system or a subsystem or component 

thereof on the basis that the item, 

component, or process was not 

developed exclusively at private 

expense, the Contracting Officer will 

sustain the challenge unless information 

provided by the Contractor or 

subcontractor demonstrates that the 

item, component, or process was 

developed exclusively at private 

expense. 

(c) Justification. The Contractor or 

subcontractor at any tier is responsible 

for maintaining records sufficient to 

justify the validity of its markings that 

impose restrictions on the Government 

and others to use, duplicate, or disclose 

technical data delivered or required to 

be delivered under the contract or 

subcontract. Except as provided in 

paragraph (b)(1) of this clause, the 

Contractor or subcontractor shall be 

prepared to furnish to the Contracting 

Officer a written justification for such 

restrictive markings in response to a 

challenge under paragraph (e) of this 

clause. 

* * * * * 

(f) Final decision when Contractor or 

subcontractor fails to respond. Upon a 

failure of a Contractor or subcontractor 

to submit any response to the challenge 

notice the Contracting Officer will issue 

a final decision to the Contractor or 

subcontractor in accordance with 

paragraph (b) of this clause and the 

Disputes clause of this contract 

pertaining to the validity of the asserted 

restriction. This final decision shall be 

issued as soon as possible after the 

expiration of the time period of 

paragraph (e)(1)(ii) or (e)(2) of this 

clause. Following issuance of the final 

decision, the Contracting Officer will 

comply with the procedures in 

paragraphs (g)(2)(ii) through (iv) of this 

clause. 

* * * * * 

(l) Flowdown. The Contractor or 

subcontractor agrees to insert this clause 

in contractual instruments with its 

subcontractors or suppliers at any tier 

requiring the delivery of technical data. 

* * * * * 

■ 14. Amend section 252.244–7000 by— 

■ (a) Amending the clause date by 

removing ‘‘(AUG 2011)’’ and adding in 

its place ‘‘(SEP 2011)’’; 

■ (b) Redesignating paragraphs (c) 

through (h) as (e) through (j), 

respectively; and 

■ (c) Adding new paragraphs (c) and (d) 

as follows: 

252.244–7000 Subcontracts for 

commercial items and commercial 

components (DoD contracts). 

* * * * * 

(c) 252.227–7015, Technical Data— 

Commercial Items (SEP 2011), if 

applicable (see 227.7102–4(a)). 

(d) 252.227–7037, Validation of 

Restrictive Markings on Technical Data 

(SEP 2011), if applicable (see 227.7102– 

4(c)). 

* * * * * 

[FR Doc. 2011–23956 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 213 

RIN 0750–AH07 

Defense Federal Acquisition 

Regulation Supplement; Ships 

Bunkers Easy Acquisition (SEA) Card®

and Aircraft Ground Services (DFARS 

Case 2009–D019) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement to 

allow the use of U.S. Government fuel 

cards in lieu of a Purchase OrderInvoice-Voucher for fuel, oil, and 

refueling-related items for purchases not 

exceeding the simplified acquisition 

threshold. 

DATES: Effective Date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, telephone 703–602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal register at 76 FR 21849 on April 

19, 2011, to add language to Defense 

Federal Acquisition Regulation 

Supplement (DFARS) 213.306(a)(1)(A) 

to include purchases of marine fuel, oil, 

and refueling-related items up to the 

simplified acquisition threshold using 

the Ships Bunkers Easy Acquisition 

(SEA) Card® in lieu of the SF 44, 

Purchase Order-Invoice-Voucher. 

Additionally, this section is revised to 

include additional ground refuelingrelated services when using the AIR 

Card®. These changes for use of the AIR 

Card® and SEA Card® will improve the 

refueling capability of aircraft and 

smaller vessels at non-contract 

locations. No public comments were 

received in response to the proposed 

rule. 

II. Executive Order 12866 and 

Executive Order 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 


sroberts on DSK5SPTVN1PROD with RULES
58150 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 

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 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. 

III. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows: 

This is a final rule to revise the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) at 213 to permit 

the use of U.S. Government fuel cards 

in lieu of an SF 44, Purchase OrderInvoice-Voucher, for fuel, oil, and 

refueling-related items for purchases not 

exceeding the simplified acquisition 

threshold. The objective of this rule is 

to amend DFARS 213.306(a)(1)(A) to (1) 

Permit the purchase of marine fuel 

using the Ships’ bunkers Easy 

Acquisition (SEA) Card® in lieu of the 

SF44, Purchase Order-Invoice-Voucher, 

up to the simplified acquisition 

threshold and (2) provide additional 

ground refueling-related services when 

using the AIR Card®. The legal basis is 

41 U.S.C. 1303 and 48 CFR chapter 1. 

Purchases of aviation fuel are on-thespot, over the counter transactions (‘‘gas 

and go’’), but generally exceed the 

micro-purchase threshold due to the 

price of aviation fuel and oil fuel tank 

capacities. Previously, the threshold for 

SF44/AIR Card® purchases of fuel and 

oil was set at the simplified acquisition 

threshold at DFARS 213.306(a)(1)(A)) 

under DFARS Case 2007–D017 (see final 

rule published at 72 FR 6484 on 

February 12, 2007). 

The military services and the U.S. 

Coast Guard have small vessels that 

fulfill valid mission needs in direct 

support of national security. Unlike 

larger vessels, small vessels’ movements 

and needs are often unpredictable. 

These small vessels must procure fuel 

away from their home stations, but 

because of their smaller size and unique 

mission requirements are unable to use 

the Defense Logistics Agency energy 

bunkers contracts available at major 

seaports. Due to port restrictions, 

bunkering merchants do not typically 

provide support to smaller vessels. 

Instead, these smaller vessels frequent 

non-contract merchants or ‘‘marina-type 

merchants’’ that otherwise serve civilian 

recreational watercraft and similar 

needs. 

No public comments were received in 

response to the initial regulatory 

flexibility analysis. 

Approximately 80% of ‘‘marina-type 

merchants’’ are considered small 

businesses. Marina-type merchants 

accepting the SEA Card® will pay a 

normal fee to the banking institution or 

processing center, similar to VISA 

charges these merchants incur from 

other credit card clients. In addition, 

merchants are expected to benefit from 

accelerated payments, since they will be 

paid by the banking institution in 

accordance with their merchant 

agreement. The rule facilitates open 

market purchases, benefits merchants by 

making it much easier for merchants to 

do business with the military and will 

not have a significant cost or 

administrative impact on contractors, 

subcontractors, or offerors. 

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 have a 

significant effect beyond DoD’s internal 

operating procedures, substituting the 

use of a fuel card (AIR Card® and SEA 

Card®) in lieu of the SF44, Purchase 

Order-Invoice-Voucher. 

IV. Paperwork Reduction Act 

This rule does not contain 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). 

List of Subjects in 48 CFR Part 213 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 213 is 

amended as follows: 

PART 213—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 1. The authority citation for 48 CFR 

part 213 continues to read as follows: 

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

chapter 1. 

■ 2. Section 213.306 is amended to 

revise paragraph (a)(1)(A) to read as 

follows: 

213.306 SF 44, Purchase Order-InvoiceVoucher. 

(a)(1) * * * 

(A) Fuel and oil. U.S. Government 

fuel cards may be used in lieu of an SF 

44 for fuel, oil, and authorized 

refueling-related items (see PGI 213.306 

for procedures on use of fuel cards); 

* * * * * 

[FR Doc. 2011–23944 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 215 

RIN 0750–AG82 

Defense Federal Acquisition 

Regulations Supplement; Discussions 

Prior to Contract Award (DFARS Case 

2010–D013) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is amending 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. 

DATES: Effective Date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, telephone 703–602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule at 75 

FR 71647 on November 24, 2010, to 

implement the recommendation of the 

DoD Source Selection Joint Analysis 

Team (JAT) to strongly encourage the 

use of discussions in all competitive 

negotiated procurements over $100 

million. The period for public comment 

closed on January 24, 2011, and three 

respondents provided comments. 

The rule proposed to amend DFARS 

part 215 to strongly recommend, for 

acquisitions of more than $100 million, 

that contracting officers hold 

discussions rather than use the 

authority at FAR 52.215–1 to award on 

initial offers without discussions. 

II. Discussion and Analysis 

A. Proposed rule is excessive 

Comment: One respondent said that 

the proposed rule is ‘‘overkill.’’ 

Response: No change was made in the 

final rule in response to this comment. 

The JAT advises that data shows that 

the number of protests filed against the 

award of competitive negotiated 

contracts and orders over $100 million 

is substantially higher when discussions 

are not held. A preference for holding 


sroberts on DSK5SPTVN1PROD with RULES