[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Proposed Rules]
[Pages 80468-80472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25160]



Federal Register / Vol. 88 , No. 221 / Friday, November 17, 2023 / 
Proposed Rules

[[Page 80468]]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203, 204, 212, and 215

[Docket DARS-2023-0043; Req No. DARS-2024-00011-FR]
RIN 0750-AK33


Defense Federal Acquisition Regulation Supplement: 
Inapplicability of Additional Defense-Unique Laws and Certain Non-
Statutory DFARS Clauses to Commercial Item Contracts (DFARS Case 2018-
D074)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement sections of the National 
Defense Authorization Acts for Fiscal Years 2018 and 2019 regarding 
applicability of certain solicitation provisions and contract clauses 
to contracts and subcontracts for commercial products, commercial 
services, and commercially available off-the-shelf items.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before January 16, 2024, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2018-D074, using 
either of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2018-D074''. Select ``Comment'' and follow the 
instructions to submit a comment. Please include ``DFARS Case 2018-
D074'' on any attached documents.
    [cir] Email: <a href="/cdn-cgi/l/email-protection#a1ced2c58fc5c7c0d3d2e1ccc0c8cd8fccc8cd"><span class="__cf_email__" data-cfemail="b7d8c4d399d3d1d6c5c4f7dad6dedb99dadedb">[email protected]</span></a>. Include DFARS Case 2018-D074 in 
the subject line of the message.
    Comments received generally will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Ms. Jeanette Snyder, telephone 703-
508-7524.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to amend the DFARS to implement paragraphs (b) and 
(c) of section 849 of the National Defense Authorization Act (NDAA) for 
Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 849 paragraph (b) 
requires that DoD review the DFARS and propose revisions to eliminate 
certain contract clause requirements applicable to Federal Acquisition 
Regulation (FAR) part 12 commercial product and commercial service 
acquisitions, except for regulations required by law or Executive 
order, unless the Secretary of Defense determines that there is a 
specific reason not to eliminate the regulation. Section 849 paragraph 
(c) requires that DoD review the DFARS and propose revisions to 
eliminate certain contract clause requirements applicable to 
commercially available off-the-shelf (COTS) item subcontracts, except 
for regulations required by law or Executive order, unless the 
Secretary of Defense determines that there is a specific reason not to 
eliminate the regulation.
    DoD also proposes to amend the DFARS to implement paragraph (a) of 
section 837 of the NDAA for FY 2019 (Pub. L. 115-232). Section 837 
paragraph (a) revises 10 U.S.C. 2375(b)(2), redesignated as 10 U.S.C. 
3452(b)(2), by deleting the date ``January 1, 2015'' and adding the 
date ``October 13, 1994'' (the date of the Federal Acquisition 
Streamlining Act (FASA) of 1994). See companion DFARS case 2017-D010 
proposed rule, published in the Federal Register at 83 FR 30646 on June 
29, 2018, which examined commercial product and commercial service 
applicability for DoD-unique statutes and associated contract clauses 
issued on or after January 1, 2015. This proposed rule under DFARS Case 
2018-D074 implements the section 837(a) change to 10 U.S.C. 3452(b)(2) 
to extend the required review of applicability of provisions of law or 
contract clauses to prime contracts for commercial products and 
commercial services enacted after October 13, 1994. Paragraphs (c)(2) 
and (d)(2) of 10 U.S.C. 3452 contain similar requirements for 
subcontracts for commercial products and commercial services, and 
contracts for COTS items; however, the date of October 13, 1994, is not 
repeated in these sections. Following the precedent set in DFARS Case 
2017-D010, for this proposed rule DoD has interpreted the date of 
October 13, 1994, as equally applicable to all three paragraphs, 
(b)(2), (c)(2), and (d)(2), since all three paragraphs are inter-
related.
    It should be noted that a clause that is inapplicable to a contract 
for commercial products is also inapplicable to a contract for COTS 
items, which are commercial products, but a clause that is applicable 
to a contract for commercial products may be inapplicable to a contract 
for COTS items. The reason for this distinction is because a COTS item, 
while a subset of commercial products, is unique in that it is offered 
to the Government without modification and in the same form in which it 
is sold in the commercial marketplace.

II. Discussion and Analysis

    DoD identified the DFARS solicitation provisions and contract 
clauses published as interim or final rules after October 13, 1994, 
excluding those reviewed under DFARS case 2017-D010, and determined 
whether the provisions and clauses were based on statute, Executive 
order, or policy. New interim or final rules published after the 
publication of DFARS case 2017-D010 on June 29, 2018, were also 
identified and evaluated under this proposed rule. Provisions and 
clauses listed at DFARS section 212.301 as applicable to the 
acquisition of commercial products and commercial services were 
included in the review.
    The proposed rule adds to the list of inapplicable provisions and 
clauses at DFARS 212.370, Inapplicability of Certain Provisions and 
Clauses to Contracts and Subcontracts for the Acquisition of Commercial 
Products, Commercial Services, and Commercially Available Off-the-shelf 
Items, two provisions and one clause that are removed from paragraph 
(f) at DFARS 212.301, Solicitation Provisions and Contract Clauses for 
the Acquisition of Commercial Products and Commercial Services. These 
provisions and clause will no longer be applicable to contracts and 
subcontracts for the acquisition of commercial products, commercial 
services, and COTS items:
    <bullet> DFARS 252.203-7003, Agency Office of the Inspector 
General.
    <bullet> DFARS 252.203-7005, Representation Relating to 
Compensation of Former DoD Officials.
    <bullet> DFARS 252.215-7007, Notice of Intent to Resolicit.
    The proposed rule updates the text at DFARS 212.371, 
Inapplicability of Certain Provisions and Clauses to Contracts for the 
Acquisition of Commercially Available Off-the-shelf Items, to conform 
to the change at 10 U.S.C. 3452(b)(2) by replacing the date of January 
1, 2015, with October 13, 1994. In addition, two provisions and two 
clauses, listed at DFARS 212.301,

[[Page 80469]]

are included on the list at DFARS 212.371. This means that although 
these provisions and clauses are applicable to contracts for the 
acquisition of commercial products and commercial services, they are 
not applicable to contracts for the acquisition of COTS items:
    <bullet> 252.204-7008, Compliance with Safeguarding Covered Defense 
Information Controls.
    <bullet> 252.204-7019, Notice of NIST SP 800-171 DoD Assessment 
Requirements.
    <bullet> 252.204-7020, NIST SP 800-171 DoD Assessment Requirements.
    <bullet> 252.204-7021, Cybersecurity Maturity Model Certification 
Requirements.
    The proposed rule revises the following prescriptions for two 
provisions and one clause to remove the requirement to include the 
provisions and clause in solicitations using FAR part 12 procedures for 
the acquisition of commercial products and commercial services:
    <bullet> The prescription at DFARS 203.171-4(b) for the provision 
at DFARS 252.203-7005, Representation Relating to Compensation of 
Former DoD Officials.
    <bullet> The prescription at DFARS 203.1004(a) for the clause at 
DFARS 252.203-7003, Agency Office of the Inspector General.
    <bullet> The prescription at DFARS 215.371-6, for the provision at 
DFARS 252.215-7007, Notice of Intent to Resolicit.
    DFARS 204.7403(b) is amended to add the phrase ``that involve 
litigation support services'' to clarify the application of the clause 
at 252.204-7015, Notice of Authorized Disclosure of Information for 
Litigation Support. At DFARS 212.301, the list of provisions and 
clauses under paragraph (f) is amended to add statutory references or 
expand on the existing references cited for several clauses and 
provisions.
    Section 212.504, Applicability of Certain Laws to Subcontracts for 
the Acquisition of Commercial Products and Commercial Services, is 
amended to remove the reference to 10 U.S.C. 4871, Reporting 
Requirement Regarding Dealings with Terrorist Countries, which is 
obsolete. The reporting requirement expired on September 30, 1996.
    For this proposed rule, DoD evaluated solicitation provisions or 
contract clauses in relation to 10 U.S.C. 3452 (e)(1), (e)(2), and 
(e)(3), i.e., those that implement a statute that provides for criminal 
or civil penalties, implement 10 U.S.C. 4862 or 4863, or implement 
statutes that specifically referred to 10 U.S.C. 3452 and provided for 
applicability to contracts for commercial products and commercial 
services. DoD also identified pre-FASA provisions and clauses. A list 
of those provisions and clauses follows this paragraph. No provisions 
or clauses were identified as implementing statutes that specifically 
referred to 10 U.S.C. 3452.
    The following provisions and clauses implement statutes that 
provide for criminal or civil penalties:
    <bullet> 252.203-7000, Requirements Relating to Compensation of 
Former DoD Officials.
    <bullet> 252.203-7002, Requirement to Inform Employees of 
Whistleblower Rights.
    <bullet> 252.246-7007, Contractor Counterfeit Electronic Part 
Detection and Avoidance System. (Applies to subcontracts.)
    <bullet> 252.246-7008, Sources of Electronic Parts.
    <bullet> 252.247-7027, Riding Gang Member Requirements.
    The following provisions and clauses implement 10 U.S.C. 4862 or 
4863:
    <bullet> 252.225-7006, Acquisition of the American Flag.
    <bullet> 252.225-7008, Restriction on Acquisition of Specialty 
Metals.
    <bullet> 252.225-7009, Restriction on Acquisition of Certain 
Articles Containing Specialty Metals.
    <bullet> 252.225-7010, Commercial Derivative Military Article-
Specialty Metals Compliance Certificate.
    <bullet> 252.225-7012, Preference for Certain Domestic Commodities.
    <bullet> 252.225-7015, Restriction on Acquisition of Hand or 
Measuring Tools.
    <bullet> 252.225-7029, Acquisition of Uniform Components for Afghan 
Military or Afghan National Police.
    The following clauses existed prior to FASA (i.e., before October 
14, 1994).
    <bullet> 252.205-7000, Provision of Information to Cooperative 
Agreement Holders.
    <bullet> 252.219-7003, Small Business Subcontracting Plan (DoD 
Contracts).
    <bullet> 252.225-7001, Buy American and Balance of Payments 
Program.
    <bullet> 252.247-7023, Transportation of Supplies by Sea.
    <bullet> 252.247-7025, Reflagging or Repair Work.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT), for Commercial Products, Including Commercially 
Available Off-the-Shelf (COTS) Items, and for Commercial Services

    This proposed rule does not create any new solicitation provisions 
or contract clauses. However, the proposed rule proposes to change to 
the applicability of the following provisions and clause by making them 
inapplicable to contracts and subcontracts for the acquisition of 
commercial products, commercial services, and COTS items: (1) 252.203-
7003, Agency Office of the Inspector General; (2) 252.203-7005, 
Representation Relating to Compensation of Former DoD Officials; and 
(3) 252.215-7007, Notice of Intent to Resolicit.

IV. Expected Impact of the Proposed Rule

    This proposed rule, when finalized, could impact any large or small 
business that is awarded a commercial contract by DoD. The proposed 
rule does not add any new solicitation provisions or contract clauses. 
Rather, there may be a reduction in burden on contractors by making two 
solicitation provisions and one contract clause no longer applicable to 
solicitations and contracts for commercial products, commercial 
services, and COTS items.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 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). E.O. 
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 E.O. 12866, Regulatory Planning 
and Review, as amended.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed rule, when finalized, 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. However, an initial regulatory flexibility analysis has been 
performed and is summarized as follows:
    DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement sections of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 and the NDAA 
for FY 2019 regarding applicability of certain solicitation provisions 
and contract clauses to contracts and subcontracts for commercial 
products, commercial

[[Page 80470]]

services, and commercially available off-the-shelf (COTS) items.
    The objective of this proposed rule is to implement paragraphs (b) 
and (c) of section 849 of the NDAA for FY 2018 (Pub. L. 115-91). 
Section 849 paragraph (b) requires an amendment to the DFARS to 
eliminate certain contract clause requirements applicable to FAR part 
12 commercial product and commercial service acquisitions, except for 
regulations required by law or Executive order, unless the Secretary of 
Defense determines that there is a specific reason not to eliminate the 
regulation. Section 849 paragraph (c) requires an amendment to the 
DFARS to eliminate certain contract clause requirements applicable to 
COTS item subcontracts, except for regulations required by law or 
Executive order, unless the Secretary of Defense determines that there 
is a specific reason not to eliminate the regulation.
    This proposed rule also includes revisions to implement paragraph 
(a) of section 837 of the NDAA for FY 2019 (Pub. L. 115-232). Section 
837 paragraph (a) revises 10 U.S.C. 2375(b)(2), redesignated as 10 
U.S.C. 3452(b)(2), by deleting the date ``January 1, 2015'' and adding 
the date ``October 13, 1994.'' This proposed rule implements the change 
at 10 U.S.C. 3452(b)(2) by proposing an amendment to the DFARS to 
eliminate solicitation provisions and contract clauses enacted after 
October 13, 1994, not including the provisions or clauses referred to 
in 10 U.S.C. 3452 (e)(1), (e)(2), and (e)(3), from commercial product 
and commercial service solicitations and contracts, respectively, 
unless the Under Secretary of Defense for Acquisition and Sustainment 
makes a written determination that it would not be in the best interest 
of the Department of Defense to exclude them.
    According to data from the Federal Procurement Data System for FY 
2020 through FY 2022, DoD awarded approximately 31,968 contracts for 
commercial products, commercial services, or COTS items to an average 
of 13,952 unique small entities per year. The proposed rule applies to 
all entities that do business with DoD and is not expected to have a 
significant impact on these entities, regardless of business size.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small entities.
    The proposed rule does not duplicate, overlap, or conflict with any 
other Federal rules.
    There are no known significant alternative approaches to the 
proposed rule that would meet the requirements of the applicable 
statute.
    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 2018-D074), in 
correspondence.

VII. Paperwork Reduction Act

    The proposed 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 Parts 203, 204, 212, and 215

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 203, 204, 212, and 215 are proposed to be 
amended as follows:

0
1. The authority citation for parts 203, 204, 212, and 215 continues to 
read as follows:

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

PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST


203.171-4  [Amended]

0
2. Amend section 203.171-4 in paragraph (b) by removing ``solicitations 
using FAR part 12 procedures for the acquisition of commercial products 
and commercial services and''.


203.1004  [Amended]

0
3. Amend section 203.1004 in paragraph (a) by removing ``, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial products and commercial services,''.

PART 204--ADMINISTRATIVE AND INFORMATION MATTERS


204.7403  [Amended]

0
4. Amend section 204.7403 in paragraph (b) by removing ``contracts, 
including'' and adding ``contracts that involve litigation support 
services, including'' in its place.

PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL 
SERVICES

0
5. Amend section 212.301--
0
a. In paragraph (f)(i)(B) by removing ``section 847 of Pub. L. 110-
181'' and adding ``section 847 of the National Defense Authorization 
Act for Fiscal Year 2008 (Pub. L. 110-181)'' in its place;
0
b. By removing paragraphs (f)(i)(D) and (E);
0
c. By revising paragraphs (f)(ii)(B) through (D);
0
d. By removing paragraph (f)(vi)(C);
0
e. By redesignating paragraphs (f)(vi)(D), (E), and (F) as paragraphs 
(f)(vi)(C), (D), and (E), respectively;
0
f. By revising paragraph (f)(viii)(D);
0
g. By revising paragraphs (f)(x)(J) through (L), (T), and (Z);
0
h. In paragraph (f)(xi)(A) by removing ``Pub. L.'' and adding ``Public 
Law'' in its place;
0
i. By revising paragraph (f)(xi)(B);
0
j. In paragraph (f)(xii)(C) by removing ``227.7102-4(c)'' and adding 
``227.7102-4(c), to comply with 10 U.S.C. 3781-3786'' in its place;
0
k. In paragraph (f)(xiv)(D) by removing ``232.7102'' and adding 
``232.7102, to comply with 26 U.S.C. 6331(h)'' in its place;
0
l. By revising paragraphs (f)(xv)(A) and (B);
0
m. By revising paragraph (f)(xix)(B); and
0
n. By revising paragraph (f)(xx)(A) and (E).
    The revisions read as follows:


212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial products and commercial services.

* * * * *
    (f) * * *
    (ii) * * *
    (B) Use the provision at 252.204-7008, Compliance with Safeguarding 
Covered Defense Information Controls, as prescribed in 204.7304(a), to 
comply with section 941 of the National Defense Authorization Act for 
Fiscal Year 2013 (Pub. L. 112-239) and section 1632 of the National 
Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).
    (C) Use the clause at 252.204-7009, Limitations on the Use or 
Disclosure of Third-Party Contractor Reported Cyber Incident 
Information, as prescribed in 204.7304(b), to comply with section 941 
of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 
112-239) and section 1632 of the National Defense Authorization Act for 
Fiscal Year 2015 (Pub. L. 113-291).
    (D) Use the clause at 252.204-7012, Safeguarding Covered Defense

[[Page 80471]]

Information and Cyber Incident Reporting, as prescribed in 204.7304(c), 
to comply with section 941 of the National Defense Authorization Act 
for Fiscal Year 2013 (Pub. L. 112-239) and section 1632 of the National 
Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291).
* * * * *
    (viii) * * *
    (D) Use the provision at 252.219-7012, Competition for Religious-
Related Services, as prescribed in 219.270-3, to comply with section 
898 of the National Defense Authorization Act for Fiscal Year 2016 
(Pub. L. 114-92).
* * * * *
    (x) * * *
    (J) Use the clause at 252.225-7016, Restriction on Acquisition of 
Ball and Roller Bearings, as prescribed in 225.7009-5, to comply with 
section 8065 of Public Law 107-117 and the same restriction in 
subsequent DoD appropriations acts.
    (K) Use the clause at 252.225-7017, Photovoltaic Devices, as 
prescribed in 225.7017-4(a), to comply with section 846 of the National 
Defense Authorization Act for Fiscal Year 2011 (Pub. L. 111-383).
    (L) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, as prescribed in 225.7017-4(b), to comply with section 846 
of the National Defense Authorization Act for Fiscal Year 2011 (Pub. L. 
111-383).
* * * * *
    (T) Use the clause at 252.225-7029, Acquisition of Uniform 
Components for Afghan Military or Afghan National Police, as prescribed 
in 225.7703-4(d), to comply with section 826 of the National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239).
* * * * *
    (Z) Use the clause at 252.225-7039, Defense Contractors Performing 
Private Security Functions Outside the United States, as prescribed in 
225.302-6, to comply with section 862 of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub L. 110-181).
* * * * *
    (xi) * * *
    (B) Use the provision at 252.226-7002, Representation for 
Demonstration Project for Contractors Employing Persons with 
Disabilities, as prescribed in 226.7203, to comply with section 853 of 
the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 
108-136).
* * * * *
    (xv) * * *
    (A) Use the clause at 252.237-7010, Prohibition on Interrogation of 
Detainees by Contractor Personnel, as prescribed in 237.173-5, to 
comply with section 1038 of the National Defense Authorization Act for 
Fiscal Year 2010 (Pub. L. 111-84).
    (B) Use the clause at 252.237-7019, Training for Contractor 
Personnel Interacting with Detainees, as prescribed in 237.171-4, to 
comply with section 1092 of the National Defense Authorization Act for 
Fiscal Year 2005 (Pub. L. 108-375).
* * * * *
    (xix) * * *
    (B) Use the clause at 252.246-7004, Safety of Facilities, 
Infrastructure, and Equipment for Military Operations, as prescribed in 
246.270-4, to comply with section 807 of the National Defense 
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84).
* * * * *
    (xx) * * *
    (A) Use the clause at 252.247-7003, Pass-Through of Motor Carrier 
Fuel Surcharge Adjustment to the Cost Bearer, as prescribed in 247.207, 
to comply with section 884 of the National Defense Authorization Act 
for Fiscal Year 2009 (Pub. L. 110-417).
* * * * *
    (E) Use the provision at 252.247-7026, Evaluation Preference for 
Use of Domestic Shipyards--Applicable to Acquisition of Carriage by 
Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as 
prescribed in 247.574(d), to comply with section 1017 of the National 
Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).
* * * * *
0
6. Amend section 212.370 by adding paragraphs (b) through (d) to read 
as follows:


212.370  Inapplicability of certain provisions and clauses to contracts 
and subcontracts for the acquisition of commercial products, commercial 
services, and commercially available off-the-shelf items.

* * * * *
    (b) 252.203-7003, Agency Office of the Inspector General.
    (c) 252.203-7005, Representation Relating to Compensation of Former 
DoD Officials.
    (d) 252.215-7007, Notice of Intent to Resolicit.
0
7. Amend section 212.371 by--
0
a. Revising the introductory text; and
0
b. Adding paragraphs (b) through (e).
    The revision and additions read as follows:


212.371  Inapplicability of certain provisions and clauses to contracts 
for the acquisition of commercially available off-the-shelf items.

    Commercially available off-the-shelf (COTS) items are a subset of 
commercial products. Therefore, the provisions and clauses listed in 
212.370 as not applicable to contracts or subcontracts for the 
acquisition of commercial products are also not applicable to contracts 
or subcontracts for the acquisition of COTS items. In addition, the 
following provisions and clauses published after October 14, 1994, not 
expressly authorized in law, are not applicable or are modified in 
their applicability to contracts for the acquisition of COTS items:
* * * * *
    (b) 252.204-7008, Compliance with Safeguarding Covered Defense 
Information Controls.
    (c) 252.204-7019, Notice of NIST SP 800-171 DoD Assessment 
Requirements.
    (d) 252.204-7020, NIST SP 800-171 DoD Assessment Requirements.
    (e) 252.204-7021, Cybersecurity Maturity Model Certification 
Requirements.


212.504  [Amended]

0
8. Amend section 212.504--
0
a. By removing paragraph (a)(xiii);
0
b. By redesignating paragraphs (a)(xiv) and (xv) as paragraphs 
(a)(xiii) and (xiv), respectively; and
0
c. In the newly redesignated paragraph (a)(xiv) by removing ``(section 
8065 of Pub. L. 107-117)'' and adding ``(section 8065, Pub. L. 107-
117)'' in its place.


212.505  [Amended]

0
9. Amend section 212.505 introductory text by removing ``or modified in 
their applicability'' and adding ``or are modified in their 
applicability'' in its place.

PART 215--CONTRACTING BY NEGOTIATION

0
10. Amend section 215.371-4--
0
a. In paragraph (a) introductory text by removing ``section''; and
0
b. By adding paragraph (a)(7).
    The addition reads as follows:


215.371-4  Exceptions.

    (a) * * *
    (7) Acquisitions of commercial products and commercial services 
using FAR part 12 procedures.
* * * * *


215.371-6  [Amended]

0
11. Amend section 215.371-6 by removing ``, including solicitations

[[Page 80472]]

using FAR part 12 procedures for the acquisition of commercial products 
and commercial services,''.

[FR Doc. 2023-25160 Filed 11-16-23; 8:45 am]
BILLING CODE 6001-FR-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>