[Federal Register Volume 77, Number 48 (Monday, March 12, 2012)]
[Rules and Regulations]
[Pages 14480-14481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5761]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 212

RIN 0750-AH61


Defense Federal Acquisition Regulation Supplement: Commercial 
Determination Approval (DFARS Case 2011-D041)

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 require higher-level approval for 
commercial item determinations for acquisitions exceeding $1 million 
when the determination is based on ``of a type'' or ``offered for 
sale'' language contained in the definition of commercial item. The 
rule also clarifies approval requirements for determinations for 
acquisitions of services exceeding $1 million using part 12 procedures 
but which do not meet the definition of commercial item.

DATES: March 12, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. Dustin Pitsch, telephone 703-602-
0289.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is revising the Defense Federal Acquisition Regulation 
Supplement (DFARS) to implement a recommendation made by the Panel on 
Contracting Integrity and included in its 2009 Report to Congress 
concerning compliance with the DFARS documentation requirements for 
commercial item determinations. The Panel on Contracting Integrity 
working group concluded, after reviewing a sampling of commercial 
contract awards, that contracting officer determinations are not always 
sufficiently documented in accordance with DFARS 212.102.
    DoD is issuing a final rule because this rule does not have a 
significant effect beyond the internal operating procedures of DoD and 
does not have a significant cost or administrative impact on 
contractors or offerors. This rule addresses DoD's internal approval 
process for contracting officer determinations made pursuant to DFARS 
part 12 for actions in excess of $1 million.

II. Discussion and Analysis

    The DFARS changes are as follows:
    <bullet> DFARS 212.102(a)(i) is revised to add ``except for 
acquisitions made pursuant to Federal Acquisition Regulation (FAR) 
12.102(f)(1).'' This language clarifies that no additional contracting 
officer determination is required for acquisitions made pursuant to FAR 
12.102(f)(1).
    <bullet> DFARS 212.102(a)(i)(A) is revised to add ``or meets the 
criteria at FAR 12.102(g)(1).'' This language addresses the 
inconsistency between the existing DFARS language at 212.102(a)(i)(A) 
that all FAR part 12 acquisitions exceeding $1 million must meet the 
commercial item definition, and the exception at FAR 12.102(g)(1) that 
allows for the use of part 12 procedures for services that do not meet 
the definition of commercial item in FAR 2.101, as long as it meets 
specific criteria listed in FAR 12.102(g)(1). The change clarifies that 
the contracting officer must determine that an acquisition exceeding $1 
million and using part 12 procedures either meets the commercial item 
definition in part FAR 2.101 or the criteria set out at FAR 
12.102(g)(1).
    <bullet> Adds DFARS 212.102(a)(i)(C) to require approval at one 
level above the contracting officer when the commercial item 
determination relies on subsections (1)(ii), (3), (4), or (6) of the 
``commercial item'' definition at FAR 2.101. The higher-level approval 
is required for commercial item determinations for actions that exceed 
$1 million that are based on ``of a type'' commercial procurements or 
items ``offered for sale'' but not yet sold to the general public.

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

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision as 
defined within the meaning at FAR 1.501-1, and 41 U.S.C. 1707 does not 
require publication for comment.

V. 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 Part 212

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.
    Therefore, 48 CFR part 212 is amended as follows:

0
1. The authority citation for 48 CFR part 212 is revised to read as 
follows:

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

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Revise section 212.102 to read as follows:

[[Page 14481]]

212.102  Applicability.

    (a)(i) When using FAR part 12 procedures for acquisitions exceeding 
$1 million in value, except for acquisitions made pursuant to FAR 
12.102(f)(1), the contracting officer shall--
    (A) Determine in writing that the acquisition meets the commercial 
item definition in FAR 2.101 or meets the criteria at FAR 12.102(g)(1);
    (B) Include the written determination in the contract file; and
    (C) Obtain approval at one level above the contracting officer when 
a commercial item determination relies on subsections (1)(ii), (3), 
(4), or (6) of the ``commercial item'' definition at FAR 2.101.

[FR Doc. 2012-5761 Filed 3-9-12; 8:45 am]
BILLING CODE 5001-06-P