Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations 90233 

VII. Paperwork Reduction Act 

This final 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 202 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System amends 48 CFR part 

202 as follows: 

■ 1. The authority citation for 48 CFR 

part 202 continues to read as follows: 

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

chapter 1. 

PART 202—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Amend section 202.101 by revising 

the definition of ‘‘Departments and 

agencies’’ to read as follows: 

202.101 Definitions. 

* * * * * 

Departments and agencies, as used in 

DFARS, means the military departments 

and the defense agencies. The military 

departments are the Departments of the 

Army, Navy, and Air Force (the Marine 

Corps is a part of the Department of the 

Navy, and the Space Force is a part of 

the Air Force). The defense agencies are 

the Chief Digital and Artificial 

Intelligence Office, the Defense 

Advanced Research Projects Agency, the 

Defense Commissary Agency, the 

Defense Contract Management Agency, 

the Defense Counterintelligence and 

Security Agency, the Defense Finance 

and Accounting Service, the Defense 

Health Agency, the Defense Information 

Systems Agency, the Defense 

Intelligence Agency, the Defense 

Logistics Agency, the Defense Threat 

Reduction Agency, the Missile Defense 

Agency, the National GeospatialIntelligence Agency, the National 

Security Agency, the Strategic 

Capabilities Office, the United States 

Cyber Command, the United States 

Special Operations Command, the 

United States Transportation Command, 

and the Washington Headquarters 

Service. 

* * * * * 

[FR Doc. 2024–26059 Filed 11–14–24; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203, 204, 205, 212, 215, 

and 225 

[Docket DARS–2023–0043] 

RIN 0750–AK33 

Defense Federal Acquisition 

Regulation Supplement: Inapplicability 

of Additional Defense-Unique Laws 

and Certain Non-Statutory DFARS 

Clauses to Commercial Item Contracts 

(DFARS Case 2018–D074) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement sections of the 

National Defense Authorization Acts for 

Fiscal Years 2018 and 2019 regarding 

the applicability of certain solicitation 

provisions and contract clauses to 

contracts and subcontracts for 

commercial products, commercial 

services, and commercially available 

off-the-shelf items. 

DATES: Effective November 25, 2024. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jeanette Snyder, telephone 703–508– 

7524. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 88 FR 80468 on 

November 17, 2023, to amend the 

DFARS to implement paragraphs (b) and 

(c) of section 849 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2018 (Pub. L. 115–91) 

and section 837 of the NDAA for FY 

2019 (Pub. L. 115–232). Paragraph (b) of 

section 849 requires that DoD review the 

DFARS and propose revisions to 

eliminate certain contract clause 

requirements applicable to Federal 

Acquisition Regulation (FAR) part 12 

commercial product and commercial 

service acquisitions, except for 

regulations required by law or Executive 

order, unless the Secretary of Defense 

determines that there is a specific 

reason not to eliminate the regulation. 

Paragraph (c) of section 849 requires 

that DoD review the DFARS and 

propose revisions to eliminate certain 

contract clause requirements applicable 

to commercially available off-the-shelf 

(COTS) item subcontracts, except for 

regulations required by law or Executive 

order, unless the Secretary of Defense 

determines that there is a specific 

reason not to eliminate the regulation. 

Paragraph (a) of section 837 of the 

NDAA for FY 2019 revises 10 U.S.C. 

2375(b)(2), redesignated as 10 U.S.C. 

3452(b)(2), by deleting the date ‘‘January 

1, 2015’’ and adding the date ‘‘October 

13, 1994’’ (the date of the Federal 

Acquisition Streamlining Act (FASA) of 

1994). DoD published an extension to 

the comment period in the Federal 

Register on December 27, 2023, at 88 FR 

89357. Two respondents submitted 

public comments in response to the 

proposed rule. 

II. Discussion and Analysis 

DoD reviewed the public comments in 

the development of the final rule; 

however, no changes were made to the 

rule as a result of the comments 

received. A discussion of the comments 

is provided, as follows: 

A. Summary of Significant Changes 

From the Proposed Rule 

DFARS 212.371 is amended to add 

the contract clauses at DFARS 252.204– 

7012, Safeguarding Covered Defense 

Information and Cyber Incident 

Reporting, and 252.205–7000, Provision 

of Information to Cooperative 

Agreement Holders, to the list of 

solicitation provisions and contract 

clauses that are inapplicable to contracts 

for the acquisition of COTS items. These 

clauses are not applicable to contracts 

solely for the acquisition of COTS items. 

DFARS 212.301 is amended to restore, 

to the list of provisions and clauses that 

apply to commercial products and 

commercial services, the clause at 

DFARS 252.203–7005, Representation 

Relating to Compensation of Former 

DoD Officials, that was removed from 

the list in the proposed rule. This 

change aligns this final rule with the 

final rule for DFARS Case 2010–D020 

published in the Federal Register on 

November 18, 2011 (76 FR 71826). 

B. Analysis of Public Comments 

Comment: One respondent 

recommended that DFARS clause 

252.225–7029, Acquisition of Uniform 

Components for Afghan Military or 

Afghan National Police, be removed 

from the DFARS as it is obsolete, since 

the United States is no longer involved 

in Afghanistan and is no longer 

purchasing uniform components for the 

Afghan military or the Afghan National 

Police. 

Response: DoD acknowledges the 

respondent’s concern relating to the 

applicability of DFARS clause 252.225– 

7029; however, the clause cannot be 

removed from the DFARS until the 


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90234 Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations 

underlying statutory requirement is 

repealed. 

Comment: One respondent indicated 

that the proposed rule did not 

sufficiently address the extent to which 

DoD reviewed, on a case-by-case basis, 

the applicability of all regulations that 

require specific contract clauses for 

contracts using the procedures in part 

12 of the FAR and for subcontracts for 

COTS items. The respondent requested 

that DoD publish a second proposed 

rule that explains and describes the 

case-by-case determinations that DoD 

made with respect to each of these 

regulations. 

Response: Section II of the preamble 

of the proposed rule provided a 

description of the analysis performed. In 

addition, the proposed rule for DFARS 

Case 2017–D010 (83 FR 30646) provided 

a description of the analysis performed 

of commercial product and commercial 

service applicability for DoD-unique 

statutes and associated contract clauses 

issued on or after January 1, 2015. In 

reviewing the remaining provisions and 

clauses, DoD considered procurementrelated reasons including, but not 

limited to, the following: national 

security, common commercial practice, 

domestic preference, prohibited sources, 

trade agreements, protection of the 

Government, health and safety, and 

foreign military sales requirements. 

C. Other Changes 

A conforming change is made to the 

prescription at 205.470 for the clause at 

DFARS 252.205–7000. Language at 

203.171–4(b) regarding applicability to 

commercial products and commercial 

services, which was proposed for 

deletion, has been restored in the 

prescription for the provision at DFARS 

252.203–7005. DFARS 212.205, Offers, 

is removed to align with changes made 

at DFARS 215.371–4(a)(7). DFARS 

212.371 is amended to change the date 

‘‘October 14, 1994’’, to ‘‘October 13, 

1994’’ to align with 10 U.S.C. 3452. The 

prescription at DFARS 225.1103(4) for 

the clause at 252.225–7007, Prohibition 

on Acquisition of Certain Items from 

Communist Chinese Military 

Companies, is amended to add the 

requirement to include the clause in 

solicitations and contracts using FAR 

part 12 procedures for the acquisition of 

commercial products and commercial 

services, to align with the determination 

made in the final rule for DFARS Case 

2018–D020 published on December 21, 

2018, at 83 FR 66066. 

III. Applicability to Contracts At or 

Below the Simplified Acquisition 

Threshold (SAT), for Commercial 

Products, Including Commercially 

Available Off-the-Shelf (COTS) Items, 

and for Commercial Services 

This final rule does not create any 

new solicitation provisions or contract 

clauses. However, the final rule clarifies 

the applicability of the following 

provisions and clause by amending the 

list under paragraph (f) at DFARS 

212.301, Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services, to remove DFARS clause 

252.203–7003, Agency Office of the 

Inspector General, and DFARS 

provision 252.215–7007, Notice of 

Intent to Resolicit. This rule also 

clarifies the applicability of certain 

provisions and clauses by amending the 

list at DFARS 212.370, Inapplicability of 

certain provisions and clauses to 

contracts and subcontracts for the 

acquisition of commercial products, 

commercial services, and COTS items, 

to add the following: (1) DFARS clause 

252.203–7003, Agency Office of the 

Inspector General; and (3) DFARS 

provision 252.215–7007, Notice of 

Intent to Resolicit. In addition, this rule 

makes similar clarifications at DFARS 

212.371, Inapplicability of certain 

provisions and clauses to contracts for 

the acquisition of COTS items, to add 

the following: (1) DFARS clause 

252.205–7000, Provision of Information 

to Cooperative Agreement Holders; (2) 

DFARS provision 252.204–7008, 

Compliance with Safeguarding Covered 

Defense Information Controls; (3) 

DFARS clause 252.204–7012, 

Safeguarding Covered Defense 

Information and Cyber Incident 

Reporting; (4) DFARS provision 

252.204–7019, Notice of NIST SP 800– 

171 DoD Assessment Requirements; (5) 

DFARS clause 252.204–7020, NIST SP 

800–171 DoD Assessment 

Requirements; and (6) DFARS clause 

252.204–7021, Cybersecurity Maturity 

Model Certification Requirements. 

IV. Expected Impact of the Proposed 

Rule 

This final rule could impact any large 

or small business that is awarded a 

commercial contract by DoD. This rule 

does not add any new solicitation 

provisions or contract clauses. Rather, 

there may be a reduction in burden on 

contractors by making one solicitation 

provision and one contract clause no 

longer applicable to solicitations and 

contracts for commercial products, 

commercial services, and COTS items, 

and by making two provisions and four 

clauses no longer applicable to 

solicitations and contracts for COTS 

items. 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, as amended. 

VI. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD 

will submit a copy of the interim or 

final rule with the form, Submission of 

Federal Rules under the Congressional 

Review Act, to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. A major rule under the 

Congressional Review Act cannot take 

effect until 60 days after it is published 

in the Federal Register. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a major 

rule as defined by 5 U.S.C. 804. 

VII. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq. and is summarized as follows: 

This rule is necessary to implement 

sections of the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2018 and the NDAA for FY 

2019 regarding the applicability of 

certain solicitation provisions and 

contract clauses to contracts and 

subcontracts for commercial products, 

commercial services, and commercially 

available off-the-shelf (COTS) items. 

The objective of this rule is to 

implement paragraphs (b) and (c) of 

section 849 of the NDAA for FY 2018 

(Pub. L. 115–91). Section 849 paragraph 

(b) requires an amendment to the 

DFARS to eliminate certain contract 

clause requirements applicable to FAR 

part 12 commercial product and 

commercial service acquisitions, except 

for regulations required by law or 

Executive order, unless the Secretary of 

Defense determines that there is a 


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Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations 90235 

specific reason not to eliminate the 

regulation. Section 849 paragraph (c) 

requires an amendment to the DFARS to 

eliminate certain contract clause 

requirements applicable to COTS item 

subcontracts, except for regulations 

required by law or Executive order, 

unless the Secretary of Defense 

determines that there is a specific 

reason not to eliminate the regulation. 

This rule also includes revisions to 

implement paragraph (a) of section 837 

of the NDAA for FY 2019 (Pub. L. 115– 

232). Section 837 paragraph (a) revises 

10 U.S.C. 2375(b)(2), redesignated as 10 

U.S.C. 3452(b)(2), by deleting the date 

‘‘January 1, 2015’’ and adding the date 

‘‘October 13, 1994.’’ This rule 

implements the change at 10 U.S.C. 

3452(b)(2) by amending the DFARS to 

eliminate solicitation provisions and 

contract clauses enacted after October 

13, 1994, not including the provisions 

or clauses referred to in 10 U.S.C. 

3452(e)(1), (e)(2), and (e)(3), from 

commercial product and commercial 

service solicitations and contracts, 

respectively, unless the Under Secretary 

of Defense for Acquisition and 

Sustainment makes a written 

determination that it would not be in 

the best interest of the Department of 

Defense to exclude them. 

No significant issues were raised by 

the public comments in response to the 

initial regulatory flexibility analysis. 

According to data from the Federal 

Procurement Data System for FY 2021 

through FY 2023, DoD awarded 

approximately 31,022 contracts for 

commercial products, commercial 

services, or COTS items to an average of 

13,335 unique small entities per year. 

Therefore, DoD estimates that the 

number of small entities to which this 

rule will apply is 13,335. 

This rule does not include any new 

reporting, recordkeeping, or other 

compliance requirements for small 

entities. 

There are no known alternatives that 

would accomplish the stated objectives 

of the statutes. 

VIII. Paperwork Reduction Act 

This final rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 203, 

204, 205, 212, 215, and 225 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System amends 48 CFR 

parts 203, 204, 205, 212, 215, and 225 

as follows: 

■ 1. The authority citation for parts 203, 

204, 205, 212, 215, and 225 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. Amend section 203.1004 by 

revising paragraph (a) 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. 

* * * * * 

PART 204—ADMINISTRATIVE AND 

INFORMATION MATTERS 

■ 3. Amend section 204.7403 by 

revising paragraph (b) to read as follows: 

204.7403 Contract clauses. 

* * * * * 

(b) Use the clause at 252.204–7015, 

Notice of Authorized Disclosure of 

Information for Litigation Support, in 

solicitations and contracts that involve 

litigation support services, including 

solicitations and contracts using FAR 

part 12 procedures for the acquisition of 

commercial products and commercial 

services. 

PART 205—PUBLICIZING CONTRACT 

ACTIONS 

■ 4. Revise section 205.470 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, including solicitations and 

contracts using FAR part 12 procedures 

for the acquisition of commercial 

products and commercial services, 

except for solicitations and contracts 

solely for the acquisition of 

commercially available off-the-shelf 

items, that are expected to exceed $1.5 

million. This clause implements 10 

U.S.C. 4957. 

PART 212—ACQUISITION OF 

COMMERCIAL PRODUCTS AND 

COMMERCIAL SERVICES 

212.205 [Removed] 

■ 5. Remove section 212.205. 

■ 6. Amend section 212.301— 

■ a. In paragraph (f)(i)(B) by removing 

‘‘section 847 of Pub. L. 110–181’’ and 

adding ‘‘section 847 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub. L. 110–181)’’ in its 

place; 

■ b. By removing paragraph (f)(i)(D); 

■ c. By redesignating paragraph (f)(i)(E) 

as (f)(i)(D); 

■ d. By revising paragraphs (f)(ii)(B) 

through (D); 

■ e. By removing paragraph (f)(vi)(C); 

■ f. By redesignating paragraphs 

(f)(vi)(D), (E), and (F) as paragraphs 

(f)(vi)(C), (D) and (E), respectively; 

■ g. By revising paragraph (f)(viii)(D); 

■ h. By revising paragraphs (f)(x)(J) 

through (L), (U), and (Y); 

■ i. In paragraph (f)(xi)(A) by removing 

‘‘Pub. L.’’ and adding ‘‘Public Law’’ in 

its place; 

■ j. By revising paragraph (f)(xi)(B); 

■ k. In paragraph (f)(xii)(C) by removing 

‘‘227.7102–4(c)’’ and adding ‘‘227.7102– 

4(c), to comply with 10 U.S.C. 3781– 

3786’’ in its place; 

■ l. In paragraph (f)(xiv)(D) by removing 

‘‘232.7102’’ and adding ‘‘232.7102, to 

comply with 26 U.S.C. 6331(h)’’ in its 

place; and 

■ m. By revising paragraphs (f)(xv)(A) 

and (B), (f)(xx)(B), and (f)(xxi)(A) and 

(D). 

The revisions read as follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial products and commercial 

services. 

* * * * * 

(f) * * * 

(ii) * * * 

(B) Use the provision at 252.204– 

7008, Compliance with Safeguarding 

Covered Defense Information Controls, 

as prescribed in 204.7304(a), to comply 

with section 941 of the National Defense 

Authorization Act for Fiscal Year 2013 

(Pub. L. 112–239) and section 1632 of 

the National Defense Authorization Act 

for Fiscal Year 2015 (Pub. L. 113–291). 

(C) Use the clause at 252.204–7009, 

Limitations on the Use or Disclosure of 

Third-Party Contractor Reported Cyber 

Incident Information, as prescribed in 

204.7304(b), to comply with section 941 

of the National Defense Authorization 

Act for Fiscal Year 2013 (Pub. L. 112– 

239) and section 1632 of the National 


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Defense Authorization Act for Fiscal 

Year 2015 (Pub. L. 113–291). 

(D) Use the clause at 252.204–7012, 

Safeguarding Covered Defense 

Information and Cyber Incident 

Reporting, as prescribed in 204.7304(c), 

to comply with section 941 of the 

National Defense Authorization Act for 

Fiscal Year 2013 (Pub. L. 112–239) and 

section 1632 of the National Defense 

Authorization Act for Fiscal Year 2015 

(Pub. L. 113–291). 

* * * * * 

(viii) * * * 

(D) Use the provision at 252.219– 

7012, Competition for Religious-Related 

Services, as prescribed in 219.270–3, to 

comply with section 898 of the National 

Defense Authorization Act for Fiscal 

Year 2016 (Pub. L. 114–92). 

* * * * * 

(x) * * * 

(J) Use the clause at 252.225–7016, 

Restriction on Acquisition of Ball and 

Roller Bearings, as prescribed in 

225.7009–5, to comply with section 

8065 of Public Law 107–117 and the 

same restriction in subsequent DoD 

appropriations acts. 

(K) Use the clause at 252.225–7017, 

Photovoltaic Devices, as prescribed in 

225.7017–4(a), to comply with section 

846 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383). 

(L) Use the provision at 252.225– 

7018, Photovoltaic Devices—Certificate, 

as prescribed in 225.7017–4(b), to 

comply with section 846 of the National 

Defense Authorization Act for Fiscal 

Year 2011 (Pub. L. 111–383). 

* * * * * 

(U) Use the clause at 252.225–7029, 

Acquisition of Uniform Components for 

Afghan Military or Afghan National 

Police, as prescribed in 225.7703–4(d), 

to comply with section 826 of the 

National Defense Authorization Act for 

Fiscal Year 2013 (Pub. L. 112–239). 

* * * * * 

(Y) Use the clause at 252.225–7039, 

Defense Contractors Performing Private 

Security Functions Outside the United 

States, as prescribed in 225.302–6, to 

comply with section 862 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub. L. 110–181). 

* * * * * 

(xi) * * * 

(B) Use the provision at 252.226– 

7002, Representation for Demonstration 

Project for Contractors Employing 

Persons with Disabilities, as prescribed 

in 226.7203, to comply with section 853 

of the National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136). 

* * * * * 

(xv) * * * 

(A) Use the clause at 252.237–7010, 

Prohibition on Interrogation of 

Detainees by Contractor Personnel, as 

prescribed in 237.173–5, to comply with 

section 1038 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84). 

(B) Use the clause at 252.237–7019, 

Training for Contractor Personnel 

Interacting with Detainees, as prescribed 

in 237.171–4, to comply with section 

1092 of the National Defense 

Authorization Act for Fiscal Year 2005 

(Pub. L. 108–375). 

* * * * * 

(xx) * * * 

(B) Use the clause at 252.246–7004, 

Safety of Facilities, Infrastructure, and 

Equipment for Military Operations, as 

prescribed in 246.270–4, to comply with 

section 807 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84). 

* * * * * 

(xxi) * * * 

(A) Use the clause at 252.247–7003, 

Pass-Through of Motor Carrier Fuel 

Surcharge Adjustment to the Cost 

Bearer, as prescribed in 247.207, to 

comply with section 884 of the National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417). 

* * * * * 

(D) 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(c), to comply with section 1017 

of the National Defense Authorization 

Act for Fiscal Year 2007 (Pub. L. 109– 

364). 

* * * * * 

■ 7. Amend section 212.370 by adding 

paragraphs (b) and (c) to read as follows: 

212.370 Inapplicability of certain 

provisions and clauses to contracts and 

subcontracts for the acquisition of 

commercial products, commercial services, 

and commercially available off-the-shelf 

items. 

* * * * * 

(b) 252.203–7003, Agency Office of 

the Inspector General. 

(c) 252.215–7007, Notice of Intent to 

Resolicit. 

■ 8. Amend section 212.371 by— 

■ a. Revising the introductory text; 

■ b. Redesignating paragraphs (b) 

through (d) as paragraphs (h) through (j), 

respectively; and 

■ c. Adding new paragraphs (b) through 

(g). 

The revision and additions read as 

follows: 

212.371 Inapplicability of certain 

provisions and clauses to contracts for the 

acquisition of commercially available offthe-shelf items. 

Commercially available off-the-shelf 

(COTS) items are a subset of commercial 

products. Therefore, the provisions and 

clauses listed in 212.370 as not 

applicable to contracts or subcontracts 

for the acquisition of commercial 

products are also not applicable to 

contracts or subcontracts for the 

acquisition of COTS items. In addition, 

the following provisions and clauses 

published after October 13, 1994, not 

expressly authorized in law, are not 

applicable or are modified in their 

applicability to contracts for the 

acquisition of COTS items: 

* * * * * 

(b) 252.204–7008, Compliance with 

Safeguarding Covered Defense 

Information Controls. 

(c) 252.204–7012, Safeguarding 

Covered Defense Information and Cyber 

Incident Reporting. 

(d) 252.204–7019, Notice of NIST SP 

800–171 DoD Assessment 

Requirements. 

(e) 252.204–7020, NIST SP 800–171 

DoD Assessment Requirements. 

(f) 252.204–7021, Cybersecurity 

Maturity Model Certification 

Requirements. 

(g) 252.205–7000, Provision of 

Information to Cooperative Agreement 

Holders. 

* * * * * 

212.504 [Amended] 

■ 9. Amend section 212.504— 

■ a. By removing paragraph (a)(xiii); 

■ b. By redesignating paragraphs (a)(xiv) 

and (xv) as paragraphs (a)(xiii) and (xiv), 

respectively; and 

■ c. In the newly redesignated 

paragraph (a)(xiv) by removing ‘‘(section 

8065 of Pub. L. 107–117)’’ and adding 

‘‘(section 8065, Pub. L. 107–117)’’ in its 

place. 

212.505 [Amended] 

■ 10. Amend section 212.505 in the 

second sentence of the introductory text 

by removing ‘‘or modified in their 

applicability’’ and adding ‘‘or are 

modified in their applicability’’ in its 

place. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 11. Amend section 215.371–4— 

■ a. In paragraph (a) introductory text by 

removing ‘‘section’’; and 

■ b. By adding paragraph (a)(7). 

The addition reads as follows: 

215.371–4 Exceptions. 

(a) * * * 


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Federal Register / Vol. 89, No. 221 / Friday, November 15, 2024 / Rules and Regulations 90237 

(7) Acquisitions of commercial 

products and commercial services using 

FAR part 12 procedures. 

* * * * * 

■ 12. Revise section 215.371–6 to read 

as follows: 

215.371–6 Solicitation provision. 

Use the provision at 252.215–7007, 

Notice of Intent to Resolicit, in 

competitive solicitations that will be 

solicited for fewer than 30 days, unless 

an exception at 215.371–4 applies or the 

requirement is waived in accordance 

with 215.371–5. 

PART 225—FOREIGN ACQUISITION 

■ 13. Amend section 225.1103 by 

revising paragraph (4) to read as follows: 

225.1103 Other provisions and clauses. 

* * * * * 

(4) Unless an exception in 225.770–3 

applies, use the clause at 252.225–7007, 

Prohibition on Acquisition of Certain 

Items from Communist Chinese Military 

Companies, in solicitations and 

contracts, including solicitations and 

contracts using FAR part 12 procedures 

for the acquisition of commercial 

products and commercial services, 

involving the delivery of items covered 

by the United States Munitions List or 

the 600 series of the Commerce Control 

List. 

[FR Doc. 2024–26054 Filed 11–14–24; 8:45 am] 

BILLING CODE 6001–FR–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 215 

[Docket DARS–2024–0035] 

RIN 0750–AM13 

Defense Federal Acquisition 

Regulation: Past Performance of 

Affiliate Companies of Small Business 

Concerns (DFARS Case 2024–D016) 

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 implement a section of the 

National Defense Authorization Act for 

Fiscal Year 2024 that provides direction 

to contracting officers evaluating the 

past performance of small business 

concerns. 

DATES: Effective November 15, 2024. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Kimberly R. Ziegler, telephone 703– 

901–3176. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is issuing a final rule amending 

the DFARS to implement section 865 of 

the National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2024 (Pub. 

L. 118–31). Section 865 requires DoD 

contracting officers to consider relevant 

past performance of affiliate companies 

of small business concerns during the 

evaluation of past performance in 

response to a competitive solicitation. 

II. Publication of This Final Rule for 

Public Comment Is Not Required by 

Statute 

The statute that applies to the 

publication of the Federal Acquisition 

Regulation (FAR) is 41 U.S.C. 1707, 

Publication of Proposed Regulations. 

Subsection (a)(1) of the statute requires 

that a procurement policy, regulation, 

procedure, or form (including an 

amendment or modification thereof) 

must be published for public comment 

if it relates to the expenditure of 

appropriated funds and has either a 

significant effect beyond the internal 

operating procedures of the agency 

issuing the policy, regulation, 

procedure, or form, or has a significant 

cost or administrative impact on 

contractors or offerors. This final rule is 

not required to be published for public 

comment, because there is no significant 

cost or administrative impact on 

contractors or offerors. When past 

performance will be evaluated in a 

source selection, contracting officers 

already request offerors to submit past 

performance information. This rule will 

allow offerors to provide past 

performance information for an affiliate 

company within that submission, and 

the Government would consider those 

submissions during the existing 

evaluation process. 

III. Applicability to Contracts At or 

Below the Simplified Acquisition 

Threshold (SAT), for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items), 

and for Commercial Services 

This final rule does not create any 

new solicitation provisions or contract 

clauses. It does not impact any existing 

solicitation provisions or contract 

clauses or their applicability to 

contracts valued at or below the 

simplified acquisition threshold, for 

commercial products including COTS 

items, or for commercial services. 

IV. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, as amended. 

V. Congressional Review Act 

As required by the Congressional 

Review Act (5 U.S.C. 801–808) before an 

interim or final rule takes effect, DoD 

will submit a copy of the interim or 

final rule with the form, Submission of 

Federal Rules Under the Congressional 

Review Act, to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States. A major rule under the 

Congressional Review Act cannot take 

effect until 60 days after it is published 

in the Federal Register. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a major 

rule as defined by 5 U.S.C. 804. 

VI. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because this final 

rule does not constitute a significant 

DFARS revision within the meaning of 

FAR 1.501–1, and 41 U.S.C. 1707 does 

not require publication for public 

comment. 

VII. Paperwork Reduction Act 

This final 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 215 

Government procurement. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

Therefore, the Defense Acquisition 

Regulations System amends 48 CFR part 

215 as follows: 


khammond on DSKJM1Z7X2PROD with RULES