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[Federal Register: September 8, 2010 (Volume 75, Number 173)]
[Rules and Regulations]               
[Page 54524-54526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se10-14]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211 and 237

RIN 0750-AG72

 
Defense Federal Acquisition Regulation Supplement; Guidance on 
Personal Services (DFARS Case 2009-D028)

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

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to enable further 
implementation of section 831 of the Duncan Hunter National Defense 
Authorization Act for Fiscal Year 2009 to require DoD to develop 
guidance related to personal services contracts.

DATES: Effective Date: September 8, 2010.
    Comment Date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before November 8, 2010, to be 
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2009-D028, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2009-D028 in the 
subject line of the message.
    [cir] Fax: 703-602-0350.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Meredith 
Murphy, 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), please check http://www.regulations.gov approximately two to three days after submission to 
verify posting (except allow 30 days for posting of comments submitted 
by mail).

[[Page 54525]]

FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile 
703-602-0350.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 831 of the Duncan Hunter National Defense Authorization Act 
for Fiscal Year 2009 (Pub. L. 110-417), Development of Guidance on 
Personal Services Contracts, required DoD to mitigate the risks 
associated with personal services by developing guidance enabling 
contracting officers to better distinguish between personal services 
and non-personal services. Recommendations by the Office of the DoD 
Inspector General have highlighted the need for additional clarity in 
this area.
    DFARS parts 211 and 237 are being amended to (1) require that 
statements of work or performance work statements clearly distinguish 
between Government employees and contractor employees and (2) ensure 
that procedures are adopted to prevent contracts from being awarded or 
administered as unauthorized personal services contracts. These 
Government procedures include an internal requirement that a program 
manager, or equivalent, certification that the service contract 
requirement does not include an unauthorized personal services 
arrangement be included in the contract file.
    DoD reviewed guidance in use throughout the Department, including 
several checklists currently used. This interim rule adopts best 
practices and implements a requirement for the program manager, or 
equivalent, to complete and submit a certification to the contracting 
officer with a services contract requirement. A new DFARS section 
211.106, Purchase descriptions for service contracts, is added to 
require that purchase descriptions for service contracts clearly 
distinguish between Government employees and contractor employees. In 
addition, a new section 237.503, Agency-head responsibilities, is added 
to require DoD agencies to adopt procedures that (1) ensure service 
contract requirements are vetted and approved in a manner that will 
prevent them from being awarded or administered as unauthorized 
personal services contracts, and (2) require a program manager, or 
equivalent, certification to be completed and provided to the 
contracting officer as part of the service contract procurement 
request, for inclusion in the contract file, that the service contract 
requirement does not include an unauthorized personal services 
arrangement, either in the way the work statement is written or in the 
manner in which the resulting contract will be managed and overseen. 
The certification requirement is designed to ensure that the 
prohibitions against personal services contracting in law (e.g., 10 
U.S.C. 129b, 5 U.S.C. 3109, or 10 U.S.C. 1091) are not violated.
    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. 604.

C. 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 section 831 affects only internal government operations and 
procedures. The interim 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-D028) in 
correspondence.

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

E. 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 without prior opportunity for public comment pursuant to 
U.S.C. 418b and FAR 1.501-3(b). This action is necessary because the 
statute became effective upon enactment on October 14, 2008, and it is 
imperative that DoD program managers and contracting officers be 
provided with the means to distinguish between personal and non-
personal services. However, 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 Parts 211 and 237

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 211 and 237 are amended as follows:
0
1. The authority citation for 48 CFR parts 211 and 237 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

PART 211--DESCRIBING AGENCY NEEDS

0
2. Section 211.106 is added to read as follows:

211.106  Purchase descriptions for service contracts.

    Agencies shall require that purchase descriptions for service 
contracts and resulting requirements documents, such as statements of 
work or performance work statements, include language to provide a 
clear distinction between Government employees and contractor 
employees. Service contracts shall require contractor employees to 
identify themselves as contractor personnel by introducing themselves 
or being introduced as contractor personnel and by displaying 
distinguishing badges or other visible identification for meetings with 
Government personnel. In addition, contracts shall require contractor 
personnel to appropriately identify themselves as contractor employees 
in telephone conversations and in formal and informal written 
correspondence.

PART 237--SERVICE CONTRACTING

0
3. Subpart 237.5 is added to read as follows:

Subpart 237.5--Management Oversight of Service Contracts

237.503  Agency-head responsibilities.

    (c) The agency head or designee shall employ procedures to ensure 
that requirements for service contracts are vetted and approved as a 
safeguard to prevent contracts from being awarded or administered in a 
manner that constitutes an unauthorized personal services contract. 
Contracting officers shall follow the procedures at PGI 237.503, 
include substantially similar certifications in conjunction with 
service contract requirements, and place the certification in the 
contract file. The

[[Page 54526]]

program manager or other official responsible for the requirement, at a 
level specified by the agency, should execute the certification.

[FR Doc. 2010-22226 Filed 9-7-10; 8:45 am]
BILLING CODE 5001-08-P
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