[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Proposed Rules]
[Pages 20598-20609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8053]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203, 204, 205, 209, 211, 212, 219, 225, 226, 227, 232, 
237, 243, 244, 246, 247, and 252

[DFARS Case 2011-D056]
RIN 0750-AH63


Defense Federal Acquisition Regulation Supplement: Solicitation 
Provisions and Contract Clauses for Acquisitions of Commercial Items

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to simplify prescriptions for provisions 
and clauses that are applicable to the acquisition of commercial items 
and to specify flowdown of clauses to commercial subcontracts.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before June 4, 2012, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2011-D056, using 
any of the following methods:

[[Page 20599]]

    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2011-D056'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2011-D056.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2011-D056'' on your attached document.
    [cir] Email: <a href="/cdn-cgi/l/email-protection#5b3f3d3a29281b34283f75363237"><span class="__cf_email__" data-cfemail="e38785829190a38c9087cd8e8a8f">[email protected]</span></a>. Include DFARS Case 2011-D056 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Dr. Laura 
Welsh, 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 www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Dr. Laura Welsh, telephone 571-372-
6091.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to revise the DFARS to support the use of 
automated contract writing systems. The clause at DFARS 252.212-7001, 
Contract Terms and Conditions Required to Implement Statutes or 
Executive Orders Applicable to Defense Acquisitions of Commercial 
Items, requires the contracting officer to ``check a box'' to identify 
the clauses that are applicable to each commercial item acquisition. 
This requirement is not compatible with most automated contract writing 
systems. Section 8002 of the Federal Acquisition Streamlining Act of 
1994 (Pub. L. 103-355) requires that the regulations shall contain a 
list of contract clauses to be included in contracts for the 
acquisition of commercial end items. Each time a clause or clause 
alternate is added, DoD must consider whether the clause or clause 
alternate will be applicable to commercial items. The law does not 
require that this list be in the form of a clause, requiring clause 
dates for each applicable clause that must be revised every time a 
clause on the list is modified.
    Furthermore, clause flowdown to commercial subcontracts is 
controlled by paragraph (c) of the clause 252.212-7001 for commercial 
contracts under FAR part 12 and clause 252.244-7000, Subcontracts for 
Commercial Items and Commercial Components (DoD Contracts). These lists 
of clauses that require flowdown to commercial subcontracts likewise 
require update every time a clause on the list is modified.

II. Discussion and Analysis

    DoD proposes the following changes to facilitate the use of 
automated contract writing systems and reduce the need for constant 
update of clause dates on multiple lists.
    <bullet> Revise DFARS 212.301(f) to--

--Provide a single list of all fifty-eight provisions and clauses that 
currently apply to DoD solicitations and contracts for the acquisition 
of commercial items. Where any provision or clause is included to 
implement statutes or executive orders that are applicable to defense 
acquisitions of commercial items, the particular statute or Executive 
order is identified following the location of the prescription for each 
provision or clause. All provisions and clauses currently listed in 
DFARS 212.301(f) that are applicable to DoD solicitations and contracts 
for the acquisition of commercial items are retained in the revised 
list.
--Add DFARS provision 252.203-7005, Representation Relating to 
Compensation of Former DoD Officials. This provision's application to 
the acquisition of commercial items was inadvertently omitted from case 
2010-D020 when the final rule was published on November 18, 2011 (76 FR 
71826).
--Add the two provisions currently contained in DFARS provision 
252.212-7000, Offeror Representations and Certifications--Commericial 
Items.
--Add one FAR clause and thirty-one DFARS clauses (inclusive of 
alternates) currently contained in DFARS clause 252.212-7001, Contract 
Terms and Conditions Required to Implement Statutes or Executive Orders 
Applicable to Defense Acquisitions of Commercial Items.
--Add two DFARS provisions and two DFARS clauses in support of 
operations in Iraq or Afghanistan: provision 252.225-7022, Trade 
Agreements Certificate--Inclusion of Iraqi End Products; provision 
252.225-7023, Preference for Products or Services from Iraq or 
Afghanistan; clause 252.225-7024, Requirement for Products or Services 
from Iraq or Afghanistan; and clause 252.225-7026, Acquisition 
Restricted to Products or Services from Iraq or Afghanistan. These 
provisions' and clauses' application to the acquisition of commercial 
items in support of operations in Iraq or Afghanistan was inadvertently 
omitted from case 2008-D002 when the final rule was published on April 
8, 2010 (75 FR 18035).
--Add DFARS provision 252.225-7037, Evaluation of Offers for Air 
Circuit Breakers. This provision's application to the acquisition of 
commercial items was inadvertently omitted from case 2002-D009 when the 
final rule was published in the Federal Register on March 31, 2003 (68 
FR 15616), with an effective date of April 30, 2003. This provision is 
the companion to DFARS clause 252.225-7038, Restriction on Acquisition 
of Air Circuit Breakers, which is currently listed at paragraph (b)(17) 
of DFARS clause 252.212-7001.
--Revise clause 252.244-7000, Subcontracts for Commercial Items, to 
address the requirements regarding flow down of clauses to subcontracts 
of commercial items currently contained in paragraph (c) of clause 
252.212-7001.
--Add DFARS clause 252.247-7025, Reflagging or Repair Work. This 
clause's application to the acquisition of commercial items was 
inadvertently omitted from case 95-D712 for the commercial item 
implementation of the Federal Acquisition Streamlining Act of 1994 
(FASA) when the final rule was published in the Federal Register on 
November 1, 2001 (66 FR 55151). All other clauses contained in DFARS 
247.574 for ocean transportation by U.S.-flag vessels are listed as 
applicable to the defense acquisition of commercial items. Time charter 
acquisitions of vessels are commercial by their very nature. Further, 
10 U.S.C. 2631 is not listed in DFARS 212.503(a) as a law not 
applicable to commercial contracts.
--Add provision and clause alternates that are applicable to commercial 
items that were previously inadvertently omitted from either DFARS 
212.301(f) or DFARS clause 252.212-7001. Alternates were added as 
applicable to: Clause 252.219-7003, Small Business Subcontracting Plan; 
provision 252.225-7000, Buy American Act-Balance of Payments Program 
Certificate; provision 252.225-7020, Trade Agreements Certificate; 
provision 252.225-7035, Buy American Act--Free Trade Agreements--
Balance of Payments Program Certificate; clause 252.227-7013, Rights in 
Technical Data--

[[Page 20600]]

Noncommercial Items; and clause 252.227-7015, Technical Data--
Commercial Items.
--Delete DFARS provision 252.212-7000, Offeror Representations and 
Certifications--Commercial Items, and DFARS clause 252.212-7001, 
Contract Terms and Conditions Required to Implement Statutes or 
Executive Orders Applicable to Defense Acquisitions of Commercial 
Items. These deletions support the use of automated contract writing 
systems. Rather than requiring the contracting officers to ``check the 
applicable clauses,'' the automated contract writing systems can be 
used to automatically select the applicable clauses, saving the DoD 
time and scarce resources.

    <bullet> Revise the prescriptions for each of the fifty-eight 
provisions and clauses, including alternates, in the revised list at 
DFARS 212.301(f) to indicate that they are specifically used in 
solicitations or contracts using FAR part 12 procedures for the 
acquisition of commercial items. The phrase ``including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items'' was used in lieu of a simpler phrase such as 
``including commercial item solicitations and contracts'' as FAR 
12.102(f) and (g) allow for the use of part 12 procedures for items 
that do not meet the definition of a commercial item defined at FAR 
2.101.
    <bullet> Make technical corrections to--

--The prescription at 232.908.
--Provide the location of prescriptions for provisions and clauses for 
the following: 252.203-7000, 252.211-7003, and 252.227-7037.
--Provide the locations of definitions missing in 247.571 and to 
provide the statutory citations missing in 247.572.

    <bullet> Revise DFARS clause 252.244-7000, Subcontracts for 
Commercial Items and Commercial Components (DoD Contracts), to indicate 
that the contractor is not required to flow down the terms of any DFARS 
clause in subcontracts for commercial items unless so specified in the 
particular clause.
    <bullet> Revise the last paragraph of the following clauses to 
state that the terms should flow down to subcontracts for commercial 
items: 252.211-7003; 252.225-7009; 252.225-7039; 252.227-7013; 252.227-
7015; 252.227-7037; 252.236-7013; 252.237-7010; 252.237-7019; 252.246-
7003; 252.247-7003; and 252.247-7023. The list of clauses requiring 
flow down of clause terms to subcontracts for commercial items was 
obtained from paragraph (c) of DFARS clause 252.212-7001 and the list 
contained in the current DFARS clause 252.244-7000, with the addition 
of clause 252.211-7003, which was previously inadvertently omitted from 
both lists in case 2003-D081 when the final rule was published in the 
Federal Register on April 22, 2005 (70 FR 20831). However, clause 
252.247-7024 did not require revision as it already contained language 
specifically requiring flow down to subcontracts for commercial items.

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 not a significant regulatory action and, therefore, was not 
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 does not expect this proposed 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 aims to only change the appearance of how commercial 
provisions and clauses are presented within commercial acquisitions and 
there are no substantive changes. However, an initial regulatory 
flexibility analysis has been performed and is summarized as follows.
    The purpose of this case is to support the use of automated 
contract writing systems. The clause at DFARS 252.212-7001 requires the 
contracting officer to ``check a box'' to identify the clauses that are 
applicable to each commercial item acquisition. Rather than requiring 
the contracting officers to ``check the applicable clauses,'' this 
proposed rule will allow automated contract writing systems to 
automatically select the applicable clauses, saving DoD time and scarce 
resources.
    Potential offerors, including small businesses, may be affected by 
this rule only to the extent of seeing an unfamiliar format for clauses 
in commercial item acquisitions issued by any DoD contracting 
activities that do not already currently deviate from the current DFARS 
requirement to ``check a box.'' There were 273,042 new contracts, 
agreements, and purchase orders awarded in Fiscal Year 2011 using FAR 
part 12 procedures for the acquisition of commercial items, and 71,950 
of these actions (26.35%) were awarded to small businesses. It is 
unknown how many of these actions were awarded using a deviation from 
DFARS clause 252.212-7001. Nothing substantive will change in 
commercial acquisitions for potential offerors, and only the appearance 
of how applicable clauses are presented will be changed. This rule may 
result in potential offerors, including small businesses, expending 
more time to become familiar with and to understand the new clause 
format issued by any DoD contracting activities not presently operating 
under the existing deviation. The burden caused by this rule is 
expected to be minimal and will not be any greater on small businesses 
than it is on large businesses.
    This rule does not add any new information collection requirements. 
The information collection burden required by DFARS provisions 252.225-
7022, Trade Agreements Certificate--Inclusion of Iraqi End Products, 
and 252.225-7023, Preference for Products or Services from Iraq or 
Afghanistan, is already covered and approved under OMB Control Number 
0704-0229 entitled Foreign Acquisitions. These provisions are variants 
of the other existing foreign acquisition reporting burdens already 
used and covered for commercial acquisitions (excluding commercial 
information technology).
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    No alternatives were identified that will accomplish the objectives 
of the rule.
    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 2011-D056), in 
correspondence.

V. Paperwork Reduction Act

    This rule does not contain any new information collection 
requirements that require the approval of the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act (44 U.S.C chapter 35). 
The commercial clauses

[[Page 20601]]

currently approved for use in commercial contracts, which may impose 
any information collection burden on contractors or any subcontractors, 
are already covered by an existing approved OMB clearance. The burdens 
for all existing commercial clauses are not changed in any way by this 
proposed rule. Two DFARS provisions, with an associated information 
collection burden, are newly identified by this rule as being 
applicable to acquisitions of commercial items: 252.225-7022, Trade 
Agreements Certificate--Inclusion of Iraqi End Products; and 252.225-
7023, Preference for Products or Services from Iraq of Afghanistan. The 
information collection burdens associated with these two DFARS 
provisions are already fully covered and cleared under OMB Control 
Number 0704-0229 entitled Foreign Acquisitions. These two provisions 
are variants of the other existing foreign acquisition provisions with 
reporting burdens already in use and covered for commercial 
acquisitions (excluding commercial information technology).

List of Subjects in 48 CFR Parts 203, 204, 205, 209, 211, 212, 219, 
225, 226, 227, 232, 237, 243, 244, 246, 247, and 252

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 203, 204, 205, 209, 211, 212, 219, 225, 
226, 227, 232, 237, 243, 244, 246, 247, and 252 are proposed to be 
amended as follows:
    1. The authority citation for 48 CFR parts 203, 204, 205, 209, 211, 
212, 219, 225, 226, 227, 232, 237, 243, 244, 246, 247, and 252 
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

    2. Section 203.171-4 is revised to read as follows:


203.171-4  Solicitation provision and contract clause.

    (a) Use the clause at 252.203-7000, Requirements Relating to 
Compensation of Former DoD Officials, in all solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items.
    (b) Use the provision at 252.203-7005, Representation Relating to 
Compensation of Former DoD Officials, in all solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, including solicitations for task and delivery orders.
    3. Section 203.1004(a) is revised to read as follows:


203.1004  Contract clauses.

    (a) Use the clause at 252.203-7003, Agency Office of the Inspector 
General, in solicitations and contracts that include the FAR clause 
52.203-13, Contractor Code of Business Ethics and Conduct, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items.
* * * * *

PART 204--ADMINISTRATIVE MATTERS

    4. Section 204.7109(b) is revised to read as follows:



204.7109  Solicitation provision and contract clause.

* * * * *
    (b) Use the provision at 252.204-7011, Alternative Line Item 
Structure, in solicitations using FAR part 12 procedures for the 
acquisition of commercial items or for initial provisioning spares.

PART 205--PUBLICIZING CONTRACT ACTIONS

    5. Section 205.470 is revised to read as follows:


205.470  Contract clause.

    Use the clause at 252.205-7000, Provision of Information to 
Cooperative Agreement Holders, in solicitations and contracts expected 
to exceed $1,000,000, including solicitations and contracts using FAR 
part 12 procedures for the acquisition of commercial items. This clause 
implements 10 U.S.C. 2416.

PART 209--CONTRACTOR QUALIFICATIONS

    6. Section 209.104-70(a) is revised to read as follows:


209.104-70  Solicitation provisions.

    (a) Use the provision at 252.209-7001, Disclosure of Ownership or 
Control by the Government of a Terrorist Country, in all solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items, expected to result in contracts of 
$150,000 or more. Any disclosure that the government of a terrorist 
country has a significant interest in an offeror or a subsidiary of an 
offeror shall be forwarded through agency channels to the address at 
209.104-1(g)(i)(C).
* * * * *

PART 211--DESCRIBING AGENCY NEEDS

    7. Section 211.274-6(a)(1) is revised to read as follows:


211.274-6  Contract clauses.

    (a)(1) Use the clause at 252.211-7003, Item Identification and 
Valuation, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, that--
* * * * *
    8. Section 211.275-3 is revised to read as follows:


211.275-3  Contract clause.

    Use the clause at 252.211-7006, Passive Radio Frequency 
Identification, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, that will require shipment of items meeting the 
criteria at 211.275-2, and complete paragraph (b)(1)(ii) of the clause 
as appropriate.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

    9. Section 212.301 is revised to read as follows:


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

    (f) The following additional provisions and clauses apply to DoD 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items. If the offeror has completed any of 
the following provisions listed in this paragraph electronically as 
part of its annual representations and certifications at https://www.acquisition.gov, the contracting officer shall consider this 
information instead of requiring the offeror to complete these 
provisions for a particular solicitation.
    (i) Use the FAR clause at 52.203-3, Gratuities, as prescribed in 
FAR 3.202, to comply with 10 U.S.C. 2207.
    (ii) Use the clause at 252.203-7000, Requirements Relating to 
Compensation of Former DoD Officials, as prescribed in 203.171-4(a), to 
comply with section 847 of Public Law 110-181.
    (iii) Use the clause at 252.203-7003, Agency Office of the 
Inspector General, as prescribed in 203.1004(a), to comply with section 
6101 of Public Law 110-252 and 41 U.S.C. 3509.
    (iv) Use the provision at 252.203-7005, Representation Relating to

[[Page 20602]]

Compensation of Former DoD Officials, as prescribed in 203.171-4(b).
    (v) Use the provision at 252.204-7011, Alternative Line Item 
Structure, as prescribed in 204.7109(b).
    (vi) Use the clause at 252.205-7000, Provision of Information to 
Cooperative Agreement Holders, as prescribed in 205.470, to comply with 
10 U.S.C. 2416.
    (vii) Use the provision at 252.209-7001, Disclosure of Ownership or 
Control by the Government of a Terrorist Country, as prescribed in 
209.104-70(a), to comply with 10 U.S.C 2327(b).
    (viii) Use the clause at 252.211-7003, Item Identification and 
Valuation, as prescribed in 211.274-6(a).
    (ix) Use the provision at 252.211-7006, Passive Radio Frequency 
Identification, as prescribed in 211.275-3.
    (x) Use the clause at 252.219-7003, Small Business Subcontracting 
Plan (DoD Contracts), as prescribed in 219.708(b)(1)(A)(1), to comply 
with 15 U.S.C. 637. Use the clause with its Alternate I as prescribed 
in 219.708(b)(1)(A)(2).
    (xi) Use the clause at 252.219-7004, Small Business Subcontracting 
Plan (Test Program), as prescribed in 219.708(b)(1)(B), to comply with 
15 U.S.C. 637 note.
    (xii) Use the provision at 252.225-7000, Buy American Act--Balance 
of Payments Program Certificate, as prescribed in 225.1101(1)(i), to 
comply with 41 U.S.C. chapter 83 and Executive Order 10582 of December 
17, 1954, Prescribing Uniform Procedures for Certain Determinations 
Under the Buy-American Act. Use the provision with its Alternate I as 
prescribed in 225.1101(1)(ii).
    (xiii) Use the clause at 252.225-7001, Buy American Act and Balance 
of Payments Program, as prescribed in 225.1101(2)(i), to comply with 41 
U.S.C. chapter 83 and Executive Order 10582 of December 17, 1954, 
Prescribing Uniform Procedures for Certain Determinations Under the 
Buy-American Act. Use the clause with its Alternate I as prescribed in 
225.1101(2)(ii).
    (xiv) Use the clause at 252.225-7008, Restriction on Acquisition of 
Specialty Metals, as prescribed in 225.7003-5(a)(1), to comply with 10 
U.S.C. 2533b.
    (xv) Use the clause at 252.225-7009, Restriction on Acquisition of 
Certain Articles Containing Specialty Metals, as prescribed in 
225.7003-5(a)(2), to comply with 10 U.S.C. 2533b.
    (xvi) Use the provision at 252.225-7010, Commercial Derivative 
Military Article--Specialty Metals Compliance Certificate, as 
prescribed in 225.7003-5(b), to comply with 10 U.S.C. 2533b.
    (xvii) Use the clause at 252.225-7012, Preference for Certain 
Domestic Commodities, as prescribed in 225.7002-3(a), to comply with 10 
U.S.C. 2533a.
    (xviii) Use the clause at 252.225-7015, Restriction on Acquisition 
of Hand or Measuring Tools, as prescribed in 225.7002-3(b), to comply 
with 10 U.S.C. 2533a.
    (xix) 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.
    (xx) Use the clause at 252.225-7017, Photovoltaic Devices, as 
prescribed in 225.7017-4(a), to comply with section 846 of Public Law 
111-383.
    (xxi) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, as prescribed in 225.7017-4(b), to comply with section 846 
of Public Law 111-383.
    (xxii) Use the provision at 252.225-7020, Trade Agreements 
Certificate, as prescribed in 225.1101(5)(i), to comply with 19 U.S.C. 
2501-2518 and 19 U.S.C. 3301 note. Use the provision with its Alternate 
I as prescribed in 225.1101(5)(ii), to comply with sections 886 and 892 
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 
110-181).
    (xxiii) Use the clause at 252.225-7021, Trade Agreements, as 
prescribed in 225.1101(6)(i), to comply with 19 U.S.C. 2501-2518 and 19 
U.S.C. 3301 note. Use the clause with its Alternate I as prescribed in 
225.1101(6)(ii), to comply with sections 886 and 892 of the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). Use 
the clause with its Alternate II as prescribed in 225.1101(6)(iii).
    (xxiv) Use the provision at 252.225-7022, Trade Agreements 
Certificate--Inclusion of Iraqi End Products, as prescribed in 
225.1101(7), to comply with section 886 of the National Defense 
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
    (xxv) Use the provision at 252.225-7023, Preference for Products or 
Services from Iraq or Afghanistan, as prescribed in 225.7703-5(a), to 
comply with section 886 of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181).
    (xxvi) Use the clause at 252.225-7024, Requirement for Products or 
Services from Iraq or Afghanistan, as prescribed in 225.7703-5(b), to 
comply with sections 886 and 892 of the National Defense Authorization 
Act for Fiscal Year 2008 (Pub. L. 110-181).
    (xxvii) Use the clause at 252.225-7026, Acquisition Restricted to 
Products or Services from Iraq or Afghanistan, as prescribed in 
225.7703-5(c), to comply with sections 886 and 892 of the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
    (xxviii) Use the clause at 252.225-7027, Restriction on Contingent 
Fees for Foreign Military Sales, as prescribed in 225.7307(a), to 
comply with 22 U.S.C. 2779.
    (xxix) Use the clause at 252.225-7028, Exclusionary Policies and 
Practices of Foreign Governments, as prescribed in 225.7307(b), to 
comply with 22 U.S.C. 2755.
    (xxx) Use the provision at 252.225-7031, Secondary Arab Boycott of 
Israel, as prescribed in 225.7605, to comply with 10 U.S.C. 2410i.
    (xxxi) Use the provision at 252.225-7035, Buy American Act--Free 
Trade Agreements--Balance of Payments Program Certificate, as 
prescribed in 225.1101(10)(i), to comply with 41 U.S.C. chapter 83 and 
19 U.S.C. 3301 note. Use the provision with its Alternate I as 
prescribed in 225.1101(10)(ii). Use the provision with its Alternate II 
as prescribed in 225.1101(10)(iii). Use the provision with its 
Alternate III as prescribed in 225.1101(10)(iv), to comply with 
sections 886 and 892 of the National Defense Authorization Act for 
Fiscal Year 2008 (Pub. L. 110-181).
    (xxxii) Use the clause at 252.225-7036, Buy American Act--Free 
Trade Agreements--Balance of Payments Program, as prescribed in 
225.1101(11)(i)(A), to comply with 41 U.S.C. chapter 83 and 19 U.S.C. 
3301 note. Use the clause with its Alternate I as prescribed in 
225.1101(11)(i)(B). Use the clause with its Alternate II as prescribed 
in 225.1101(11)(i)(A), to comply with sections 886 and 892 of the 
National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-
181). Use the clause with its Alternate III as prescribed in 
225.1101(11)(i)(B), to comply with sections 886 and 892 of the National 
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
    (xxxiii) Use the provision at 252.225-7037, Evaluation of Offers 
for Air Circuit Breakers, as prescribed in 225.7006-4(a), to comply 
with 10 U.S.C. 2534(a)(3) as amended by section 814 of the National 
Defense Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) and 
section 4102(i) of the Federal Acquisition Streamlining Act of 1994 
(Pub. L. 103-355).
    (xxxiv) Use the clause at 252.225-7038, Restriction on Acquisition 
of Air

[[Page 20603]]

Circuit Breakers, as prescribed in 225.7006-4(b), to comply with 10 
U.S.C. 2534(a)(3) as amended by section 814 of the National Defense 
Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) and section 
4102(i) of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 
103-355).
    (xxxv) Use the clause at 252.225-7039, Contractors Performing 
Private Security Functions, as prescribed in 225.370-6, to comply with 
section 862 of Public Law 110-181, as amended by section 853 of Public 
Law 110-417 and sections 831 and 832 of Public Law 111-383.
    (xxxvi) Use the clause at 252.225-7040, Contractor Personnel 
Authorized to Accompany U.S. Armed Forces Deployed Outside the United 
States, as prescribed in 225.7402-5(a).
    (xxxvii) Use the clause at 252.225-7043, Antiterrorism/Force 
Protection Policy for Defense Contractors Outside the United States, as 
prescribed in 225.7403-2.
    (xxxviii) Use the clause at 252.226-7001, Utilization of Indian 
Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian 
Small Business Concerns, as prescribed in 226.104, to comply with 
section 8021 of Public Law 107-248 and similar sections in subsequent 
DoD appropriations acts.
    (xxxix) Use the clause at 252.227--7013, Rights in Technical Data-
Noncommercial Items, as prescribed in 227.7103-6(a). Use the clause 
with its Alternate I as prescribed in 227.7103-6(b)(1). Use the clause 
with its Alternate II as prescribed in 227.7103-6(b)(2), to comply with 
10 U.S.C. 7317 and 17 U.S.C. 1301, et seq.
    (xl) Use the clause at 252.227-7015, Technical Data--Commercial 
Items, as prescribed in 227.7102-4(a)(1), to comply with 10 U.S.C. 
2320. Use the clause with its Alternate I as prescribed in 227.7102-
4(a)(2), to comply with 10 U.S.C. 7317 and 17 U.S.C. 1301, et seq.
    (xli) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, as prescribed in part 227.
    (xlii) Use the clause at 252.232-7003, Electronic Submission of 
Payment Requests and Receiving Reports, as prescribed in 232.7004, to 
comply with 10 U.S.C. 2227.
    (xliii) Use the clause at 252.232-7009, Mandatory Payment by 
Governmentwide Commercial Purchase Card, as prescribed in 232.1110.
    (xliv) Use the clause at 252.232-7010, Levies on Contract Payments, 
as prescribed in 232.7102.
    (xlv) Use the clause at 252.232-7011, Payments in Support of 
Emergencies and Contingency Operations, as prescribed in 232.908.
    (xlvi) 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 Public Law 111-84.
    (xlvii) 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 Public Law 108-375.
    (xlviii) Use the clause at 252.243-7002, Requests for Equitable 
Adjustment, as prescribed in 243.205-71, to comply with 10 U.S.C. 2410.
    (xlix) Use the clause at 252.244-7000, Subcontracts for Commercial 
Items, as prescribed in 244.403.
    (l) Use the clause at 252.246-7003, Notification of Potential 
Safety Issues, as prescribed in 246.371(a).
    (li) 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 Public Law 111-84.
    (lii) 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 Public Law 110-417.
    (liii) Use the provision at 252.247-7022, Representation of Extent 
of Transportation by Sea, as prescribed in 247.574(a).
    (liv) Use the clause at 252.247-7023, Transportation of Supplies by 
Sea, as prescribed in 247.574(b)(1), to comply with the Cargo 
Preference Act of 1904 (10 U.S.C. 2631(a)). Use the clause with its 
Alternate I as prescribed in 247.574(b)(2). Use the clause with its 
Alternate II as prescribed in 247.574(b)(3). Use the clause with its 
Alternate III as prescribed in 247.574(b)(4).
    (lv) Use the clause at 252.247-7024, Notification of Transportation 
of Supplies by Sea, as prescribed in 247.574(c).
    (lvi) Use the clause 252.247-7025, Reflagging or Repair Work, as 
prescribed in 247.574(d), to comply with 10 U.S.C. 2631(b).
    (lvii) 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(e), to comply with section 1017 of Public Law 
109-364.
    (lviii) Use the clause at 252.247-7027, Riding Gang Member 
Requirements, as prescribed in 247.574(f), to comply with section 3504 
of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 
110-417).

PART 219--SMALL BUSINESS PROGRAMS

    10. Section 219.708(b)(1) is revised to read as follows:


219.708  Contract clauses.

    (b)(1)(A) Use the clause at 252.219-7003, Small Business 
Subcontracting Plan (DoD Contracts)--
    (1) In solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items that contain the clause at FAR 52.219-9, Small 
Business Subcontracting Plan.
    (2) With its Alternate I in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that use Alternate III of 52.219-9, 
Small Business Subcontracting Plan.
    (B) In solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, with contractors that have comprehensive 
subcontracting plans approved under the test program described in 
219.702, use the clause at 252.219-7004, Small Business Subcontracting 
Plan (Test Program), instead of the clauses at 252.219-7003, Small 
Business Subcontracting Plan (DoD Contracts), and FAR 52.219-9, Small 
Business Subcontracting Plan. Include--
    (1) FAR clause 52.219-9, Small Business Subcontracting Plan, and 
252.219-7003, Small Business Subcontracting Plan (DoD Contracts), in 
the contract for purposes of the contractor flowing these clauses down 
to subcontractors, except
    (2) When the contract will not be reported in FPDS (see FAR 
4.606(c)(5)), include FAR clause 52.219-9, Small Business 
Subcontracting Plan, with its Alternate III and 252.219-7003, Small 
Business Subcontracting Plan (DoD Contracts), with its Alternate I in 
the contract for purposes of the contractor flowing these clauses down 
to subcontractors.
* * * * *

PART 225--FOREIGN ACQUISITION

    11. In section 225.370-6, the introductory text is revised to read 
as follows:


225.370-6  Contract clause.

    Use the clause at 252.225-7039, Contractors Performing Private 
Security Functions, in all solicitations and contracts, including 
solicitations and

[[Page 20604]]

contracts using FAR part 12 procedures for the acquisition of 
commercial items, to be performed in areas of--
* * * * *
    12. Section 225.1101 is amended by--
    a. Revising paragraph (1);
    b. Revising the introductory text of paragraph (2)(i); and
    c. Revising paragraphs (2)(ii); (5); (6)(i), (ii), (iii); (7); 
(10); and (11)(i).
    The revisions read as follows:


225.1101  Acquisition of supplies.

    (1)(i) Use the provision at 252.225-7000, Buy American Act--Balance 
of Payments Program Certificate, instead of the provision at FAR 
52.225-2, Buy American Act Certificate. Use the provision in any 
solicitation, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, that includes the clause at 
252.225-7001, Buy American Act and Balance of Payments Program.
    (ii) Use the provision with its Alternate I in solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items, when the acquisition is of end 
products listed in 225.401-70 in support of operations in Afghanistan.
    (2)(i) Use the clause at 252.225-7001, Buy American Act and Balance 
of Payments Program, instead of the clause at FAR 52.225-1, Buy 
American Act--Supplies, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, unless--
* * * * *
    (ii) Use the clause with its Alternate I in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, when the 
acquisition is of end products listed in 225.401-70 in support of 
operations in Afghanistan
* * * * *
    (5)(i) Except as provided in paragraph (7) of this section, use the 
provision at 252.225-7020, Trade Agreements Certificate, instead of the 
provision at FAR 52.225-6, Trade Agreements Certificate, in 
solicitations, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, that include the clause at 
252.225-7021, Trade Agreements.
    (ii) Use the provision with its Alternate I in solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items, when the acquisition is of end 
products in support of operations in Afghanistan.
    (6)(i) Use the clause at 252.225-7021, Trade Agreements, instead of 
the clause at FAR 52.225-5, Trade Agreements, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, if the World Trade 
Organization Government Procurement Agreement applies.
    (ii) Use the clause with its Alternate I in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that include the 
clause at 252.225-7024, Requirement for Products or Services from Iraq 
or Afghanistan, unless the clause at 252.225-7024 has been modified to 
provide a preference only for the products of Afghanistan.
    (iii) Use the clause with its Alternate II in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, when the 
acquisition is of end products in support of operations in Afghanistan 
and Alternate I is not applicable.
* * * * *
    (7) Use the provision at 252.225-7022, Trade Agreements 
Certificate--Inclusion of Iraqi End Products, instead of the provision 
at FAR 52.225-6, Trade Agreements Certificate, in solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items, that include the clause at 252.225-
7021, Trade Agreements, with its Alternate I.
* * * * *
    (10)(i) Use the provision at 252.225-7035, Buy American Act--Free 
Trade Agreements--Balance of Payments Program Certificate, instead of 
the provision at FAR 52.225-4, Buy American Act--Free Trade 
Agreements--Israeli Trade Act Certificate, in solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, that include the clause at 252.225-7036, Buy American 
Act--Free Trade Agreements--Balance of Payments Program.
    (ii) Use the provision with its Alternate I in solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items, when the clause at 252.225-7036 is 
used with its Alternate I.
    (iii) Use the provision with its Alternate II in solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items, when the clause at 252.225-7036 is 
used with its Alternate II.
    (iv) Use the provision with its Alternate III in solicitations, 
including solicitations using FAR part 12 procedures for the 
acquisition of commercial items, when the clause at 252.225-7036 is 
used with its Alternate III.
    (11)(i) Except as provided in paragraph (11)(ii) of this section, 
use the clause at 252.225-7036, Buy American Act--Free Trade 
Agreements--Balance of Payments Program, instead of the clause at FAR 
52.225-3, Buy American Act--Free Trade Agreements--Israeli Trade Act, 
in solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
for the items listed at 225.401-70, when the estimated value equals or 
exceeds $25,000, but is less than $202,000, and a Free Trade Agreement 
applies to the acquisition.
    (A) Use the basic clause in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, when the estimated value equals or 
exceeds $77,494, except if the acquisition is of end products in 
support of operations in Afghanistan, use with its Alternate II.
    (B) Use the clause with its Alternate I in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, when the estimated 
value equals or exceeds $25,000 but is less than $77,494, except if the 
acquisition is of end products in support of operations in Afghanistan, 
use with its Alternate III.
* * * * *
    13. Section 225.7002-3 is revised to read as follows:


225.7002-3  Contract clauses.

    Unless an exception applies--
    (a) Use the clause at 252.225-7012, Preference for Certain Domestic 
Commodities, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, exceeding the simplified acquisition threshold.
    (b) Use the clause at 252.225-7015, Restriction on Acquisition of 
Hand or Measuring Tools, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, exceeding the simplified acquisition 
threshold that require delivery of hand or measuring tools.
    14. In section 225.7003-5, the introductory text of paragraphs 
(a)(1), (a)(2), and (b) are revised to read as follows:

[[Page 20605]]

225.7003-5  Solicitation provision and contract clauses.

    (a) * * *
    (1) Use the clause at 252.225-7008, Restriction on Acquisition of 
Specialty Metals, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, that--
* * * * *
    (2) Use the clause at 252.225-7009, Restriction on Acquisition of 
Certain Articles Containing Specialty Metals, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, that--
* * * * *
    (b) Use the provision at 252.225-7010, Commercial Derivative 
Military Article--Specialty Metals Compliance Certificate, in 
solicitations, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items--
* * * * *
    15. In section 225.7006-4, the introductory text of paragraphs (a) 
and (b) are revised to read as follows:


225.7006-4  Solicitation provision and contract clause.

    (a) Use the provision at 252.225-7037, Evaluation of Offers for Air 
Circuit Breakers, in solicitations, including solicitations using FAR 
part 12 procedures for the acquisition of commercial items, requiring 
air circuit breakers for naval vessels unless--
* * * * *
    (b) Use the clause at 252.225-7038, Restriction on Acquisition of 
Air Circuit Breakers, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, requiring air circuit breakers for 
naval vessels unless--
* * * * *
    16. In section 225.7009-5, the introductory text is revised to read 
as follows:


225.7009-5  Contract clause.

    Use the clause at 252.225-7016, Restriction on Acquisition of Ball 
and Roller Bearings, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, unless--
* * * * *
    17. Section 225.7017-4 is amended by--
    a. Revising the introductory text of paragraph (a)(1); and
    b. Revising paragraphs (a)(2) and (b).
    The revisions read as follows:


225.7017-4  Solicitation provisions and contract clauses.

    (a)(1) Use the clause at 252.225-7017, Photovoltaic Devices, in 
solicitations, including solicitations using FAR part 12 procedures for 
the acquisition of commercial items, for a contract that--
* * * * *
    (2) Use the clause in the resultant contract, including contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
if it is a covered contract (i.e., will result in DoD ownership of 
photovoltaic devices, by means other than DoD purchase as end 
products).
    (b) Use the provision at 252.225-7018, Photovoltaic Devices--
Certificate, in solicitations, including solicitations using FAR part 
12 procedures for the acquisition of commercial items, containing the 
clause at 252.225-7017.
    18. Section 225.7307 is revised to read as follows:


225.7307  Contract clauses.

    (a) Use the clause at 252.225-7027, Restriction on Contingent Fees 
for Foreign Military Sales, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for FMS. Insert in paragraph (b)(1) of 
the clause the name(s) of any foreign country customer(s) listed in 
225.7303-4(b).
    (b) Use the clause at 252.225-7028, Exclusionary Policies and 
Practices of Foreign Governments, in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, for the purchase of supplies and 
services for international military education training and FMS.
    19. In section 225.7402-5(a), the introductory text is revised to 
read as follows:


225.7402-5  Contract clauses.

    (a) Use the clause at 252.225-7040, Contractor Personnel Authorized 
to Accompany U.S. Armed Forces Deployed Outside the United States, 
instead of the clause at FAR 52.225-19, Contractor Personnel in a 
Designated Operational Area or Supporting a Diplomatic or Consular 
Mission Outside the United States, in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, that authorize contractor 
personnel to accompany U.S. Armed Forces deployed outside the United 
States in--
* * * * *
    20. In section 225.7403-2, the introductory text is revised to read 
as follows:


225.7403-2  Contract clause.

    Use the clause at 252.225-7043, Antiterrorism/Force Protection 
Policy for Defense Contractors Outside the United States, in 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that require performance or travel outside the United States, except 
for contracts with--
* * * * *
    21. Section 225.7605 is revised to read as follows:


225.7605  Solicitation provision.

    Unless an exception applies or a waiver has been granted in 
accordance with 225.7604, use the provision at 252.225-7031, Secondary 
Arab Boycott of Israel, in all solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items.
    22. Section 225.7703-5 is amended by--
    a. Revising the introductory text of paragraph (a);
    b. Revising paragraph (b); and
    c. Revising the introductory text of paragraph (c)(1).
    The revisions read as follows:


225.7703-5  Solicitation provisions and contract clauses.

    (a) Use the provision at 252.225-7023, Preference for Products or 
Services from Iraq or Afghanistan, in solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, that provide a preference for products or services 
from Iraq or Afghanistan in accordance with 225.7703-1(a)(1). The 
contracting officer--
* * * * *
    (b) Use the clause at 252.225-7024, Requirement for Products or 
Services from Iraq or Afghanistan, in solicitations, including 
solicitations using FAR part 12 procedures for the acquisition of 
commercial items, that include the provision at 252.225-7023, 
Preference for Products or Services from Iraq or Afghanistan, and in 
the resulting contract. If the provision at 252.225-7023 has been 
modified to provide a preference exclusively for Iraq or exclusively 
for Afghanistan, in accordance with paragraph (a)(1) of this 
subsection, the clause at 252.225-7024 shall be modified accordingly.
    (c)(1) Use the clause at 252.225-7026, Acquisition Restricted to 
Products or Services from Iraq or Afghanistan, in solicitations and 
contracts, including solicitations and contracts using FAR

[[Page 20606]]

part 12 procedures for the acquisition of commercial items, that--
* * * * *

PART 226--OTHER SOCIOECONOMIC PROGRAMS

    23. Section 226.104 is revised to read as follows:


226.104  Contract clause.

    Use the clause at 252.226-7001, Utilization of Indian 
Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian 
Small Business Concerns, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for supplies or services exceeding 
$500,000 in value.

Subpart 227.71--Rights in Technical Data

    24. In section 227.7102-4, paragraphs (a) and (c) are revised to 
read as follows:


227.7102-4  Contract clauses.

    (a)(1) Except as provided in paragraph (b) of this subsection, use 
the clause at 252.227-7015, Technical Data-Commercial Items, in all 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
when the contractor will be required to deliver technical data 
pertaining to commercial items, components, or processes.
    (2) Use the clause at 252.227-7015 with its Alternate I in 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
for the development or delivery of a vessel design or any useful 
article embodying a vessel design.
* * * * *
    (c) Use the clause at 252.227-7037, Validation of Restrictive 
Markings on Technical Data, in all solicitations and contracts using 
FAR part 12 procedures for the acquisition of commercial items that 
include the clause at 252.227-7015 or the clause at 252.227-7013.
    25. Section 227.7103-6 is amended by--
    a. Revising paragraph (a);
    b. Revising the introductory text of paragraph (b)(1); and
    c. Revising paragraph (b)(2).
    The revisions read as follows:


227.7103-6  Contract clauses.

    (a) Use the clause at 252.227-7013, Rights in Technical Data-
Noncommercial Items, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, when the successful offeror(s) will be 
required to deliver to the Government technical data pertaining to 
noncommercial items, or pertaining to commercial items for which the 
Government will have paid for any portion of the development costs (in 
which case the clause at 252.227-7013 will govern the technical data 
pertaining to any portion of a commercial item that was developed in 
any part at Government expense, and the clause at 252.227-7015 will 
govern the technical data pertaining to any portion of a commercial 
item that was developed exclusively at private expense). Do not use the 
clause when the only deliverable items are computer software or 
computer software documentation (see 227.72), commercial items 
developed exclusively at private expense (see 227.7102-4), existing 
works (see 227.7105), special works (see 227.7106), or when contracting 
under the Small Business Innovation Research Program (see 227.7104). 
Except as provided in 227.7107-2, do not use the clause in architect-
engineer and construction contracts.
    (b)(1) Use the clause at 252.227-7013 with its Alternate I in 
research solicitations and contracts, including research solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, when the contracting officer determines, in 
consultation with counsel, that public dissemination by the contractor 
would be--
* * * * *
    (2) Use the clause at 252.227-7013 with its Alternate II in 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
for the development or delivery of a vessel design or any useful 
article embodying a vessel design.
* * * * *

PART 232--CONTRACT FINANCING

    26. Section 232.908 is revised to read as follows:


232.908  Contract clauses.

    Use the clause at 252.232-7011, Payments in Support of Emergencies 
and Contingency Operations, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, in addition to either the approved 
clause prescribed in FAR 32.908 or paragraph (i)(2) of 52.212-4 in 
acquisitions that meet the applicability criteria at 232.901(1).
    27. In section 232.1110, the introductory text is revised to read 
as follows:


232.1110  Solicitation provision and contract clauses.

    Use the clause at 252.232-7009, Mandatory Payment by Governmentwide 
Commercial Purchase Card, in solicitations, contracts, and agreements, 
including solicitations, contracts, and agreements using FAR part 12 
procedures for the acquisition of commercial items, when--
* * * * *
    28. Section 232.7004 is revised to read as follows:


232.7004  Contract clause.

    Except as provided in 232.7002(a), use the clause at 252.232-7003, 
Electronic Submission of Payment Requests and Receiving Reports, in 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items.
    29. Section 232.7102 is revised to read as follows:


232.7102  Contract clause.

    Use the clause at 252.232-7010, Levies on Contract Payments, in all 
solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
other than those for micropurchases.

PART 237--SERVICE CONTRACTING

    30. In section 237.171-4, the introductory text is revised to read 
as follows:


237.171-4  Contract clause.

    Use the clause at 252.237-7019, Training for Contractor Personnel 
Interacting with Detainees, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for the acquisition of services if--
* * * * *
    31. Section 237.173-5 is revised to read as follows:


237.173-5  Contract clause.

    Insert the clause at 252.237-7010, Prohibition on Interrogation of 
Detainees by Contractor Personnel, in solicitations and contracts, 
including solicitations and contracts using FAR part 12 procedures for 
the acquisition of commercial items, for the provision of services.

[[Page 20607]]

PART 243--CONTRACT MODIFICATIONS

    32. Section 243.205-71 is revised to read as follows:


243.205-71   Requests for equitable adjustment.

    Use the clause at 252.243-7002, Requests for Equitable Adjustment, 
in solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
estimated to exceed the simplified acquisition threshold.

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

    33. Section 244.403 is revised to read as follows:


244.403   Contract clause.

    Use the clause at 252.244-7000, Subcontracts for Commercial Items, 
in solicitations and contracts, including solicitations and contracts 
using FAR part 12 procedures for the acquisition of commercial items, 
that contain any of the following clauses:
    (1) 252.211-7003, Item Identification and Valuation.
    (2) 252.225-7009, Restriction on Acquisition of Certain Articles 
Containing Specialty Metals.
    (3) 252.225-7039, Contractors Performing Private Security 
Functions.
    (4) 252.227-7013, Rights in Technical Data--Noncommercial Items.
    (5) 252.227-7015, Technical Data-Commercial Items.
    (6) 252.227-7037, Validation of Restrictive Markings on Technical 
Data.
    (7) 252.236-7013, Requirement for Competition Opportunity for 
American Steel Producers, Fabricators, and Manufacturers.
    (8) 252.237-7010, Prohibition on Interrogation of Detainees by 
Contractor Personnel.
    (9) 252.237-7019, Training for Contractor Personnel Interacting 
with Detainees.
    (10) 252.246-7003, Notification of Potential Safety Issues.
    (11) 252.247-7003, Pass-Through of Motor Carrier Fuel Surcharge 
Adjustment to the Cost Bearer.
    (12) 252.247-7023, Transportation of Supplies by Sea.
    (13) 252.247-7024, Notification of Transportation of Supplies by 
Sea.

PART 246--QUALITY ASSURANCE

    34. Section 246.270-4 is revised to read as follows:


246.270-4   Contract clause.

    Use the clause at 252.246-7004, Safety of Facilities, 
Infrastructure, and Equipment for Military Operations, in solicitations 
and contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, for the 
construction, installation, repair, maintenance, or operation of 
facilities, infrastructure, or for equipment configured for occupancy, 
planned for use by DoD military or civilian personnel during military 
operations.
    35. In section 246.371(a), the introductory text is revised to read 
as follows:


246.371   Notification of potential safety issues.

    (a) Use the clause at 252.246-7003, Notification of Potential 
Safety Issues, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, for the acquisition of--
* * * * *

PART 247--TRANSPORTATION

    36. Section 247.207 is revised to read as follows:


247.207   Solicitation provisions, contract clauses, and special 
requirements.

    Use the clause at 252.247-7003, Pass-Through of Motor Carrier Fuel 
Surcharge Adjustment to the Cost Bearer, in solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, for carriage in 
which a motor carrier, broker, or freight forwarder will provide or 
arrange truck transportation services that provide for a fuel-related 
adjustment.
    37. Section 247.571 is revised to read as follows:


247.571   Definitions.

    (a) ``Components,'' ``foreign flag vessel,'' ``ocean 
transportation,'' ``supplies,'' and ``U.S.-flag vessel,'' as used in 
this subpart, have the meaning given in the clause at 252.247-7023, 
Transportation of Supplies by Sea.
    (b) ``Reflagging or repair work,'' as used in this subpart, has the 
meaning given in the clause at 252.247-7025, Reflagging or Repair Work.
    (c) ``Covered vessel,'' ``foreign shipyard,'' ``overhaul, repair, 
and maintenance work,'' ``shipyard,'' and ``U.S. shipyard,'' as used in 
this subpart, have the meaning given in 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.
    38. Section 247.572 is amended by--
    a. Revising the introductory text of paragraph (a); and
    b. Adding introductory text to paragraph (c).
    The revisions read as follows:


247.572   Policy.

    (a) In accordance with 10 U.S.C. 2631(a), DoD contractors must 
transport supplies, as defined in the clause at 252.247-7023, 
Transportation of Supplies by Sea, exclusively on U.S.-flag vessels 
unless--
* * * * *
    (c) In accordance with 10 U.S.C. 2631(b)--
* * * * *
    39. Section 247.574 is amended by--
    a. Revising the introductory text of paragraph (a); and
    b. Revising paragraphs (b)(1), (c), (d), (e), and (f).
    The revisions read as follows:


247.574   Solicitation provisions and contract clauses.

    (a) Use the provision at 252.247-7022, Representation of Extent of 
Transportation by Sea, in all solicitations, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items, 
except--
* * * * *
    (b)(1) Use the clause at 252.247-7023, Transportation of Supplies 
by Sea, in all solicitations and resultant contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, except those for direct purchase of 
ocean transportation services.
* * * * *
    (c) Use the clause at 252.247-7024, Notification of Transportation 
of Supplies by Sea, in all contracts, including contracts using FAR 
part 12 procedures for the acquisition of commercial items, for which 
the offeror made a negative response to the inquiry in the provision at 
252.247-7022, Representation of Extent of Transportation by Sea.
    (d) Use the clause at 252.247-7025, Reflagging or Repair Work, in 
all time charter solicitations and contracts, including time charter 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial items, for the use of a vessel for the 
transportation of supplies, unless a waiver has been granted in 
accordance with 247.572(c)(2).
    (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

[[Page 20608]]

Noncontiguous Trade, in solicitations, including solicitations using 
FAR part 12 procedures for the acquisition of commercial items, that 
require a covered vessel for carriage of cargo for DoD. See 247.573-3 
for reporting of the information received from offerors in response to 
the provision. See 247.573-2(c)(3) for the required evaluation 
criterion.
    (f) Use the clause at 252.247-7027, Riding Gang Member 
Requirements, in solicitations and contracts, including solicitations 
and contracts using FAR part 12 procedures for the acquisition of 
commercial items, for the charter of, or contract for carriage of cargo 
by, a U.S.-flag vessel documented under chapter 121 of title 46 U.S.C. 
Follow the procedures at PGI 247.574.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.203-7000   [Amended]

    40. Section 252.203-7000 is amended by--
    a. Removing from the introductory paragraph ``201.171-4'' and 
adding ``201.171-4(a)'' in its place; and
    b. Removing from the clause heading ``(JUN 2011)'' and adding 
``(DATE)'' in its place.
    41. Section 252.211-7003 is amended by--
    a. Removing from the clause heading ``(JUN 2011)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (g) to read as follows:


252.211-7003   Item Identification and Valuation.

* * * * *
    (g) Subcontracts. If the Contractor acquires by subcontract, any 
item(s) for which unique item identification is required in accordance 
with paragraph (c)(1) of this clause, the Contractor shall include this 
clause, including this paragraph (g), in the applicable subcontract(s), 
including subcontracts for commercial items.
* * * * *


252.212-7000   [Removed]

    42. Section 252.212-7000 is removed.


252.212-7001   [Removed]

    43. Section 252.212-7001 is removed.
    44. Section 252.225-7009 is amended by--
    a. Removing from the clause heading ``(JAN 2011)'' and adding 
``(DATE)'' in its place; and
    b. Revising the introductory text of paragraph (e) to read as 
follows:


252.225-7009   Restriction on Acquisition of Certain Articles 
Containing Specialty Metals.

* * * * *
    (e) Subcontracts. The Contractor shall insert the substance of this 
clause in subcontracts, including subcontracts for commercial items, 
for items containing specialty metals, to the extent necessary to 
ensure compliance of the end products that the Contractor will deliver 
to the Government. When inserting the substance of this clause in 
subcontracts, the Contractor shall--
* * * * *
    45. Section 252.225-7039 is amended by--
    a. Removing from the clause heading ``(AUG 2011)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (e) to read as follows:


252.225-7039   Contractors Performing Private Security Functions.

* * * * *
    (e) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (e), in all subcontracts, 
including subcontracts for commercial items, that will be performed in 
areas of contingency operations, complex contingency operations, or 
other military operations or exercises designated by the Combatant 
Commander.
* * * * *
    46. Section 252.227-7013 is amended by--
    a. Removing from the clause heading ``(FEB 2012)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (k)(2) to read as follows:


252.227-7013   Rights in Technical Data-Noncommercial Items.

* * * * *
    (k) * * *
    (2) Whenever any technical data for noncommercial items, or for 
commercial items developed in any part at Government expense, is to be 
obtained from a subcontractor or supplier for delivery to the 
Government under this contract, the Contractor shall use this same 
clause in the subcontract or other contractual instrument, including 
subcontracts or other contractual instruments for commercial items, and 
require its subcontractors or suppliers to do so, without alteration, 
except to identify the parties. This clause will govern the technical 
data pertaining to noncommercial items, or to any portion of a 
commercial item that was developed in any part at Government expense, 
and the clause at 252.227-7015 will govern the technical data 
pertaining to any portion of a commercial item that was developed 
exclusively at private expense. No other clause shall be used to 
enlarge or diminish the Government's, the Contractor's, or a higher-
tier subcontractor's or supplier's rights in a subcontractor's or 
supplier's technical data.
* * * * *
    47. Section 252.227-7015 is amended by--
    a. Removing from the clause heading ``(DEC 2011)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (e)(2) to read as follows:


252.227-7015  Technical Data-Commercial Items.

* * * * *
    (e) * * *
    (2) Whenever any technical data related to commercial items 
developed in any part at private expense will be obtained from a 
subcontractor or supplier for delivery to the Government under this 
contract, the Contractor shall use this same clause in the subcontract 
or other contractual instrument, including subcontracts and other 
contractual instruments for commercial items, and require its 
subcontractors or suppliers to do so, without alteration, except to 
identify the parties. This clause will govern the technical data 
pertaining to any portion of a commercial item that was developed 
exclusively at private expense, and the clause at 252.227-7013 will 
govern the technical data pertaining to any portion of a commercial 
item that was developed in any part at Government expense.
* * * * *
    48. Section 252.227-7037 is amended by--
    a. Removing from the introductory paragraph ``227.7102-3(c)'' and 
adding ``227.7102-4(c)'' in its place;
    b. Removing from the clause heading ``(SEP 2011)'' and adding 
``(DATE)'' in its place; and
    c. Revising paragraph (l) to read as follows:


252.227-7037   Validation of Restrictive Markings on Technical Data.

* * * * *
    (l) Flowdown. The Contractor or subcontractor agrees to insert this 
clause in contractual instruments, including subcontracts and other 
contractual instruments for commercial items, with its subcontractors 
or suppliers at any tier requiring the delivery of technical data.
* * * * *
    49. Section 252.236-7013 is amended by--

[[Page 20609]]

    a. Removing from the clause heading ``(JAN 2009)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (c) to read as follows:


252.236-7013  Requirement for Competition Opportunity for American 
Steel Producers, Fabricators, and Manufacturers.

* * * * *
    (c) The Contractor shall insert the substance of this clause, 
including this paragraph (c), in any subcontract that involves the 
acquisition of steel as a construction material, including subcontracts 
for the acquisition of commercial items.
* * * * *
    50. Section 252.237-7010 is amended by--
    a. Removing from the clause heading ``(NOV 2010)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (c) to read as follows:


252.237-7010  Prohibition on Interrogation of Detainees by Contractor 
Personnel.

* * * * *
    (c) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (c), in all subcontracts, 
including subcontracts for commercial items, that may require 
subcontractor personnel to interact with detainees in the course of 
their duties.
* * * * *
    51. Section 252.237-7019 is amended by--
    a. Removing from the clause heading ``(SEP 2006)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (c) to read as follows:


252.237-7019  Training for Contractor Personnel Interacting with 
Detainees.

* * * * *
    (c) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (c), in all subcontracts, 
including subcontracts for commercial items, that may require 
subcontractor personnel to interact with detainees in the course of 
their duties.
* * * * *
    52. Section 252.244-7000 is revised to read as follows:


252.244-7000   Subcontracts for Commercial Items.

    As prescribed in 244.403, use the following clause:

SUBCONTRACTS FOR COMMERCIAL ITEMS (DATE)

    (a) The Contractor is not required to flow down the terms of any 
Defense Federal Acquisition Regulation Supplement clause in 
subcontracts for commercial items at any tier under this contract 
unless so specified in the particular clause.
    (b) While not required, the Contractor may flow down to 
subcontracts for commercial items a minimal number of additional 
clauses necessary to satisfy its contractual obligation.
    (c) The Contractor shall include the terms of this clause, 
including this paragraph (c), in subcontracts awarded at any tier 
under this contract, including subcontracts for the acquisition of 
commercial items.
* * * * *
    53. Section 252.246-7003 is amended by--
    a. Removing from the clause heading ``(JAN 2007)'' and adding 
``(DATE)'' in its place; and
    b. Revising the introductory text of paragraph (f)(2) to read as 
follows:


252.246-7003   Notification of Potential Safety Issues.

* * * * *
    (f) * * *
    (2) For those subcontracts, including subcontracts for commercial 
items, described in paragraph (f)(1) of this clause, the Contractor 
shall require the subcontractor to provide the notification required by 
paragraph (c) of this clause to--
* * * * *
    54. Section 252.247-7003 is amended by--
    a. Removing from the clause heading ``(SEP 2010)'' and adding 
``(DATE)'' in its place; and
    b. Revising paragraph (c) to read as follows:


252.247-7003  Pass-Through of Motor Carrier Fuel Surcharge Adjustment 
to the Cost Bearer.

* * * * *
    (c) The Contractor shall insert the substance of this clause, 
including this paragraph (c), in all subcontracts, including 
subcontracts for commercial items, with motor carriers, brokers, or 
freight forwarders.
* * * * *
    55. Section 252.247-7023 is amended by--
    a. Removing from the clause heading ``(May 2002)'' and adding 
``(DATE)'' in its place;
    b. Revising the introductory text of paragraph (h); and
    c. Removing from paragraphs (h)(1) and (h)(2) ``Part 2'' and adding 
``part 2'' in both places.
    The revision reads as follows:


252.247-7023   Transportation of Supplies by Sea.

* * * * *
    (h) In the award of subcontracts, for the types of supplies 
described in paragraph (b)(2) of this clause, including subcontracts 
for commercial items, the Contractor shall flow down the requirements 
of this clause as follows:
* * * * *
[FR Doc. 2012-8053 Filed 4-4-12; 8:45 am]
BILLING CODE 5001-06-P


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