58140 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 

Item No. Supplies/Service Quantity Unit Unit 

Price Amount 

0001 ......................................... Computer, Desktop with CPU, Keyboard and Mouse ............... 20 EA ...........

0002 ......................................... Monitor ....................................................................................... 20 EA ...........

(End of provision) 

[FR Doc. 2011–23953 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204 and 252 

RIN 0750–AG39 

Defense Federal Acquisition 

Regulation Supplement; Annual 

Representations and Certifications 

(DFARS Case 2009–D011) 

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 

(DFARS) to conform it to higher-level 

changes in the Code of Federal 

Regulation relating to annual 

representations and certifications. 

DATES: Effective date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Mr. Julian Thrash, 703–602–0310. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DFARS 204.1202 prescribes use of 

DFARS provision 252.204–7007, 

Alternate A, Annual Representations 

and Certifications, in contracts that also 

incorporate Federal Acquisition 

Regulation (FAR) provision 52.204–8, 

Annual Representations and 

Certifications. FAR 52.204–8 was 

changed to add a new paragraph (c), 

which lists the applicable 

representations and certifications in the 

Online Representations and 

Certifications Application (ORCA). This 

FAR change necessitated a similar 

modification of DFARS 252.204–7007. 

DoD published a proposed rule in the 

Federal Register at 75 FR 71646, on 

November 24, 2010, to update DFARS 

204.1202 and 252.204–7007. The public 

comment period closed January 24, 

2011. Two respondents submitted 

comments on the proposed rule. A 

discussion of the comments is provided 

below. 

II. Discussion and Analysis 

A. Applicability 

Comment: A respondent 

recommended DFARS 252.212–7000, 

Offeror Representations and 

Certifications—Commercial Items, be 

retained in the list of representations 

and certification at 204.1202(2) that are 

not to be included in the solicitation 

when using the provision DFARS 

252.204–7007, because that provision is 

to be used in non-commercial 

solicitations only. Another respondent 

recommended that DFARS 204.1202(2) 

include provisions that are applicable to 

solicitations, rather than those not 

applicable, similar to FAR 52.204–8. 

Response: The first respondent is 

correct that DFARS provision 252.212– 

7000 is for commercial solicitations 

only and will not be included in 

solicitations that include DFARS 

252.204–7007, because that provision is 

used when FAR 52.204–8 is included, 

and that FAR provision is not used in 

solicitations issued under FAR part 12 

for acquisition of commercial items. 

However, inclusion of DFARS 252.212– 

7000 on the list at DFARS 204.1202(2) 

is not appropriate, because the list at 

DFARS 204.1202(2) should include only 

provisions that are listed in 252.204– 

7007, Alternate A, Annual 

Representations and Certifications. 

Therefore, the final rule does not retain 

252.212–7000 on the list at 204.1202(2). 

Further, DFARS 204.1202(2) 

introductory text was amended to 

clarify that the listed provisions will not 

be included separately in the 

solicitation, because the appropriate 

representations and certifications will 

be covered by inclusion of DFARS 

252.204–7007 in the solicitation. 

Comment: A respondent 

recommended the representations at 

DFARS 252.216–7003 and DFARS 

252.239–7011 be retained in the list of 

representations and certifications at 

DFARS 252.204–7007 because the 

Contractor is asked to make a 

representation about itself. 

Response: DFARS 252.216–7003 will 

be retained in the list. DFARS 252.239– 

7011, however, will not be included 

because the clause requires contractors 

to make certain representations during 

contract performance concerning 

reimbursement of special construction 

and equipment costs. According to 

DFARS 239.7408–1(a), ‘‘special 

construction normally involves a 

common carrier giving a special service 

or facility related to the performance of 

the basic telecommunications service 

requirements.’’ Since these are costs that 

occur during contract performance, the 

contractor would not be able to make a 

proper representation prior to award. 

B. Clarification 

Comment: A respondent 

recommended modifying the second 

sentence of DFARS 252.204.7007(e) by 

removing ‘‘as indicated in (d) and (e) of 

this provision’’ and adding ‘‘as well as 

those in (d) above’’ after ‘‘posted 

electronically.’’ 

Response: When using the alternate at 

DFARS 252.204–7007, paragraphs (d) 

and (e) replace paragraph (d) of FAR 

52.204–8. DFARS 252.204–7007(e) 

provides that by submission of an offer, 

the offeror verifies that the FAR 52.204– 

8(c) representations and certifications 

and the DFARS 252.204–7007(d) 

representations and certifications are up 

to date in ORCA. Accordingly, the 

language in paragraph (e) was changed 

to include the statement ‘‘as indicated 

in FAR 52.204–8(c) and paragraph (d) of 

this provision.’’ 

Comment: A respondent commented 

that the second to last line of 252.204– 

7007(e) should say ‘‘provision number’’ 

instead of ‘‘clause number.’’ 

Response: The term ‘‘clause number’’ 

was changed to ‘‘provision number’’ in 

the second to last line of 252.204– 

7007(e) and in the first block of the table 

provided. 

C. Additional Changes 

DFARS 252.209–7001, Disclosure of 

Ownership or Control by the 

Government of a Terrorist Country, 

which was inadvertently omitted from 

the listing of provisions, has been added 

to 204.1202(2)(i) and 252.204– 

7007(d)(1)(i). The Alternates for 

252.225–7020, Trade Agreements 

Certificate, and 252.225–7035, Buy 

American Act-Free Trade AgreementsBalance of Payments Program 

Certificate, were added to 252.204– 

7007(d)(2)(iii), and (vi), respectively. 

Additionally, to further clarify 

applicability of the various provisions, 

252.204–7007(d) was reformatted into 

two sections to separately list the 

DFARS provisions that the contracting 

officer may individually select if one of 

the provisions applies for a particular 


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Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 58141 

procurement. Additionally, the 

prescription for use of 252.204–7007 

was reformatted to include it as a lead 

in to the provision rather than being a 

part of the provision. 

III. 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 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. 

IV. Regulatory Flexibility Act 

DoD certifies that this final rule will 

not have a significant economic impact 

on a substantial number of small entities 

within the meaning for the Regulatory 

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

because the rule does not impose any 

additional requirements on small 

businesses. 

A proposed rule published in the 

Federal Register at 75 FR 73997, on 

November 30, 2010, invited comments 

from small businesses and other 

interested parties. No comments were 

received from small entities on the 

affected DFARS subpart with regard to 

small businesses. 

V. 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). 

List of Subjects in 48 CFR Parts 204 and 

252 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 204 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 204 and 252 continues to read as 

follows: 

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

chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 2. Section 204.1202 is revised to read 

as follows: 

204.1202 Solicitation provision. 

When using the provision at FAR 

52.204–8, Annual Representations and 

Certifications— 

(1) Use the provision with 252.204– 

7007, Alternate A, Annual 

Representations and Certifications; and 

(2) Do not include separately in the 

solicitation the following provisions, 

which are included in DFARS 252.204– 

7007: 

(i) 252.209–7001, Disclosure of 

Ownership or Control by the 

Government of a Terrorist Country. 

(ii) 252.209–7005, Reserve Officer 

Training Corps and Military Recruiting 

on Campus. 

(iii) 252.209–7002, Disclosure of 

Ownership or Control by a Foreign 

Government. 

(iv) 252.216–7003, Economic Price 

Adjustment—Wage Rates or Material 

Prices Controlled by a Foreign 

Government. 

(v) 252.225–7000, Buy American 

Act—Balance of Payments Program 

Certificate. 

(vi) 252.225–7020, Trade Agreements 

Certificate. 

(vii) 252.225–7022, Trade Agreements 

Certificate—Inclusion of Iraqi End 

Products. 

(viii) 252.225–7031, Secondary Arab 

Boycott of Israel. 

(ix) 252.225–7035, Buy American 

Act—Free Trade Agreements—Balance 

of Payments Program Certificate. 

(x) 252.225–7042, Authorization to 

Perform. 

(xi) 252.229–7003, Tax Exemptions 

(Italy). 

(xii) 252.229–7005, Tax Exemptions 

(Spain). 

(xiii) 252.247–7022, Representation of 

Extent of Transportation by Sea. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Section 252.204–7007 is revised to 

read as follows: 

252.204–7007 Alternate A, Annual 

Representations and Certifications. 

As prescribed in 204.1202, use the 

following provision: 

Alternate A, Annual Representations and 

Certifications (Sep 2011) 

Substitute the following paragraphs (d) and 

(e) for paragraph (d) of the provision at FAR 

52.204–8: 

(d)(1) The following representations or 

certifications in ORCA are applicable to this 

solicitation as indicated: 

(i) 252.209–7001, Disclosure of Ownership 

or Control by the Government of a Terrorist 

Country. Applies to all solicitations expected 

to result in contracts of $150,000 or more. 

(ii) 252.209–7005, Reserve Officer Training 

Corps and Military Recruiting on Campus. 

Applies to all solicitations and contracts with 

institutions of higher education. 

(iii) 252.216–7003, Economic Price 

Adjustment–Wage Rates or Material Prices 

Controlled by a Foreign Government. Applies 

to fixed-price supply and service contracts 

when the contract is to be performed wholly 

or in part in a foreign country, and a foreign 

government controls wage rates or material 

prices and may during contract performance 

impose a mandatory change in wages or 

prices of materials. 

(iv) 252.225–7042, Authorization to 

Perform. Applies to all solicitations when 

performance will be wholly or in part in a 

foreign country. 

(v) 252.229–7003, Tax Exemptions (Italy). 

Applies to solicitations and contracts when 

contract performance will be in Italy. 

(vi) 252.229–7005, Tax Exemptions 

(Spain). Applies to solicitations and contracts 

when contract performance will be in Spain. 

(vii) 252.247–7022, Representation of 

Extent of Transportation by Sea. Applies to 

all solicitations except those for direct 

purchase of ocean transportation services or 

those with an anticipated value at or below 

the simplified acquisition threshold. 

(2) The following representations or 

certifications in ORCA are applicable to this 

solicitation as indicated by the Contracting 

Officer: [Contracting Officer check as 

appropriate.] 

ll(i) 252.209–7002, Disclosure of 

Ownership or Control by a Foreign 

Government. 

ll(ii) 252.225–7000, Buy American 

Act—Balance of Payments Program 

Certificate. 

ll(iii) 252.225–7020, Trade Agreements 

Certificate. 

llUse with Alternate I. 

ll(iv) 252.225–7022, Trade Agreements 

Certificate—Inclusion of Iraqi End Products. 

ll(v) 252.225–7031, Secondary Arab 

Boycott of Israel. 

ll(vi) 252.225–7035, Buy American 

Act—Free Trade Agreements—Balance of 

Payments Program Certificate. 

llUse with Alternate I. 

llUse with Alternate II. 

llUse with Alternate III. 

(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 FAR 52.204–8(c) 

and paragraph (d) 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 


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58142 Federal Register / Vol. 76, No. 182 / Tuesday, September 20, 2011 / Rules and Regulations 

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 provision 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 provision No. 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. 

(End of provision) 

[FR Doc. 2011–23947 Filed 9–19–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211 and 252 

RIN 0750–AH05 

Defense Federal Acquisition 

Regulation Supplement; Passive Radio 

Frequency Identification (DFARS Case 

2010–D014) 

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 

(DFARS) to update requirements 

relating to the use of passive radio 

frequency identification (RFID). 

DATES: Effective Date: September 20, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Dustin Pitsch, telephone 703–602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 76 FR 9714 on 

February 26, 2011, in response to a 

request of the Office of Logistics and 

Materiel Readiness of the Office of the 

Secretary of Defense (Acquisition, 

Technology, and Logistics) to update 

requirements relating to the use of 

passive radio frequency identification 

(RFID). 

II. Discussion and Analysis 

DoD received comments from two 

respondents in response to the proposed 

rule. One respondent expressed general 

support for the rule. 

Comment: A respondent stated that 

RFID tags will play an expanded role in 

inventory management and asset 

protection for the DoD and expanded 

use should occur soon. 

Response: DoD agrees that RFID use 

in inventory management is expanding 

and will continue to expand. 

Comment: A respondent stated that 

RFID tracking is not the current industry 

standard for inventory management of 

pharmaceuticals and that adding this 

requirement would cost the suppliers 

and DoD a significant amount of time 

and money to implement. This 

respondent believes that the current use 

of 2D barcodes is sufficient for tracking 

pharmaceuticals and that the DoD 

should not require the use of passive 

RFID. 

Response: DoD agrees and the final 

rule does not include a requirement for 

passive RFID use for pharmaceuticals. 

III. 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 a significant 

regulatory action and, therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

804. 

IV. Regulatory Flexibility Act 

DoD has prepared a Final Regulatory 

Flexibility Analysis (FRFA) consistent 

with the Regulatory Flexibility Act, 

5 U.S.C. 601, et seq. The FRFA is 

summarized as follows. 

The DFARS previously listed 

approximately 20 specific DoD activity 

addresses and provides the authority for 

using other ship-to locations ‘‘outside 

the contiguous United States’’ under 

certain circumstances. However, the 

Defense Logistics Agency and the Navy 

proposed adding more than 200 

additional sites, making it impracticable 

to list all DoD passive RFID addresses in 

the DFARS text or its associated clause. 

Instead, this rule adds a Web site for 

contractors to find the RFID Identifier 

for each specific DoD ship-to address 

that uses RFID technology. Including 

the Web site in the DFARS has the 

added benefit of enabling the addition 

of new ship-to addresses in the future as 

necessary without the need to revise the 

DFARS in each case. This final rule 

amends the revised, shortened list of 

ship-to addresses at DFARS 211.275– 

2(a)(2) to allow contracting officers to 

add tagging requirements to contract 

deliverables shipping to DoDAACs not 

specifically included in the list as they 

deem necessary. 

The current OMB information 

collection justification for the clause 

associated with the current DFARS, 

252.211–7006, entitled ‘‘Radio 

Frequency Identification,’’ lists the 

number of contractors impacted by the 

RFID requirement as 25,500. While each 

contractor has multiple submissions 

(one for each shipment), it takes only 

1.12 seconds per response. The rule 

changes impact, if any, should decrease 

the response time and not increase it. 

V. Paperwork Reduction Act 

There are information collection 

requirements associated with the use of 

RFIDs. However, there will be no 

substantive change to the existing 

information collection requirements 

currently approved under OMB 

Information Control Number 0704– 

0434, DFARS; Radio Frequency 

Identification Advance Shipment 

Notices. Therefore, DoD has determined 

that the final rule has no material 

impact on the approved collection. 

List of Subjects in 48 CFR Parts 211 and 

252 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 211 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 211 and 252 continues to read as 

follows: 

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

chapter 1. 


sroberts on DSK5SPTVN1PROD with RULES