40714 Federal Register / Vol. 75, No. 133 / Tuesday, July 13, 2010 / Rules and Regulations 

contracting activity subsequently 

determines that the operational area has 

evolved into a less stable environment, 

the head of the contracting activity will 

make a determination that conditions 

exist that limit normal business 

operations. The contracting officer will 

then reactivate clause 252.232–7011 by 

issuance of a contract modification. 

■ 4. Section 232.908 is added 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 in addition to 

the approved clause prescribed in FAR 

32.908 in acquisitions that meet the 

applicability criteria at 232.901(1). 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 5. Section 252.232–7011 is added to 

read as follows: 

252.232–7011 Payments in Support of 

Emergencies and Contingency Operations. 

As prescribed in section 232.908, use 

the following clause: 

PAYMENTS IN SUPPORT OF 

EMERGENCIES AND CONTINGENCY 

OPERATIONS (JUL 2010) 

(a) Definitions of pertinent terms are set 

forth in sections 2.101, 32.001, and 32.902 of 

the Federal Acquisition Regulation. 

(b) Notwithstanding any other payment 

clause in this contract, the Government will 

make invoice payments under the terms and 

conditions specified in this clause. The 

Government considers payment as being 

made on the day a check is dated or the date 

of an electronic funds transfer 

(c) Invoice payments. 

(1) Due date. 

(i) Payment will be made as soon as 

possible once a proper invoice is received 

and matched with the contract and the 

receiving/acceptance report. 

(ii) If the contract does not require 

submission of an invoice for payment (e.g., 

periodic lease payments), the due date will 

be as specified in the contract. 

(2) Contractor’s invoice. The Contractor 

shall prepare and submit invoices to the 

designated billing office specified in the 

contract. A proper invoice should include the 

items listed in paragraphs (c)(2)(i) through 

(c)(2)(x) of this clause. 

(i) Name and address of the Contractor. 

(ii) Invoice date and invoice number. (The 

Contractor should date invoices as close as 

possible to the date of the mailing or 

transmission.) 

(iii) Contract number or other authorization 

for supplies delivered or services performed 

(including order number and contract line 

item number). 

(iv) Description, quantity, unit of measure, 

unit price, and extended price of supplies 

delivered or services performed. 

(v) Shipping and payment terms (e.g., 

shipment number and date of shipment, 

discount for prompt payment terms). Bill of 

lading number and weight of shipment will 

be shown for shipments on Government bills 

of lading. 

(vi) Name and address of Contractor 

official to whom payment is to be sent (must 

be the same as that in the contract or in a 

proper notice of assignment). 

(vii) Name (where practicable), title, phone 

number, and mailing address of person to 

notify in the event of a defective invoice. 

(viii) Taxpayer Identification Number 

(when required). The taxpayer identification 

number is required for all payees subject to 

the U.S. Internal Revenue Code. 

(ix) Electronic funds transfer banking 

information. 

(A) The Contractor shall include electronic 

funds transfer banking information on the 

invoice only if required elsewhere in this 

contract. 

(B) If electronic funds transfer banking 

information is not required to be on the 

invoice, in order for the invoice to be a 

proper invoice, the Contractor shall have 

submitted correct electronic funds transfer 

banking information in accordance with the 

applicable solicitation provision (e.g., 

52.232–38, Submission of Electronic Funds 

Transfer Information with Offer), contract 

clause (e.g., 52.232–33, Payment by 

Electronic Funds Transfer—Central 

Contractor Registration, or 52.232–34, 

Payment by Electronic Funds Transfer-Other 

Than Central Contractor Registration), or 

applicable agency procedures. 

(C) Electronic funds transfer banking 

information is not required if the 

Government waived the requirement to pay 

by electronic funds transfer. 

(x) Any other information or 

documentation required by the contract (e.g., 

evidence of shipment). 

(3) Discounts for prompt payment. The 

designated payment office will take costeffective discounts if the payment is made 

within the discount terms of the contract. 

(4) Contract financing payment. If this 

contract provides for contract financing, the 

Government will make contract financing 

payments in accordance with the applicable 

contract financing clause. 

(5) Overpayments. If the Contractor 

becomes aware of a duplicate contract 

financing or invoice payment or that the 

Government has otherwise overpaid on a 

contract financing or invoice payment, the 

Contractor shall— 

(i) Remit the overpayment amount to the 

payment office cited in the contract along 

with a description of the overpayment, 

including the— 

(A) Circumstances of the overpayment 

(e.g., duplicate payment, erroneous payment, 

liquidation errors, date(s) of overpayment); 

(B) Affected contract number and delivery 

order number, if applicable; 

(C) Affected contract line item or subline 

item, if applicable; and 

(D) Contractor point of contact; and 

(ii) Provide a copy of the remittance and 

supporting documentation to the Contracting 

Officer. 

(d) This clause is applicable until 

otherwise notified by the Contracting Officer. 

Upon notification by issuance of a contract 

modification, the appropriate FAR Prompt 

Payment clause in the contract becomes 

applicable. 

(End of clause) 

[FR Doc. 2010–16892 Filed 7–12–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 205 and 210 

Defense Federal Acquisition 

Regulation Supplement; Publication of 

Notification of Bundling of Contracts 

of the Department of Defense (DFARS 

Case 2009–D033) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 820 of 

the National Defense Authorization Act 

for Fiscal Year 2010 (Pub. L. 111–84, 

enacted October 28, 2009). 

DATES: Effective Date: July 13, 2010. 

Comment Date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before September 13, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2009–D033, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D033 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Meredith 

Murphy, OUSD(AT&L)DPAP(DARS), 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: 

Meredith Murphy, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP(DARS), Room 

3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 703–602–1302; facsimile 

703–602–0350. 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 75, No. 133 / Tuesday, July 13, 2010 / Rules and Regulations 40715 

SUPPLEMENTARY INFORMATION: 

A. Background 

This DFARS case implements section 

820 of the National Defense 

Authorization Act for Fiscal Year 2010. 

Section 820 is entitled ‘‘Publication of 

Notification of Bundling of Contracts of 

the Department of Defense.’’ 

The new statute requires DoD 

contracting officers to publish a 

notification ‘‘consistent with the 

requirements’’ of FAR 10.001(c)(2) on 

FedBizOpps.gov, or any successor site, 

at least 30 days prior to the release of 

a solicitation for a bundled acquisition. 

In addition, if the DoD agency has 

determined that ‘‘measurably substantial 

benefits are expected to be derived as a 

result of bundling,’’ the notification 

must include a brief description of those 

benefits. The acquisitions covered by 

section 820 are defined at 820(b) as 

those that are funded entirely by DoD 

funds and covered by FAR 7.107, 

entitled ‘‘Additional requirements for 

acquisitions involving bundling.’’ 

The statute, at section 820(c), 

provides that nothing in the new 

requirement shall be construed to— 

(a) Alter any other publication or 

synopsis requirement; 

(b) Require the public availability of 

information that is protected by the 

FOIA (5 U.S.C. 552(b)); or 

(c) Require contracting officers to 

delay the issuance of a solicitation in 

order to meet the 30-day period 

(between the notification and the release 

of the solicitation) if the expedited 

issuance of the solicitation is otherwise 

authorized under any other requirement 

of law or regulation. 

The FAR, at 10.001(c), addresses the 

market research requirements for 

agencies contemplating a bundled 

contract award. Currently, FAR 

10.001(c)(2) requires that the agency, at 

least 30 days before release of a 

solicitation for a potential bundled 

procurement or 30 days prior to placing 

a bundled order without a solicitation, 

must notify any affected incumbent 

small businesses of (a) the intention to 

bundle the requirement and (b) how the 

small businesses can contact the 

appropriate SBA representative. This 

requirement is somewhat different from 

that in section 820. Therefore, a crossreference to the section 820 requirement 

has been added at DFARS 210.001(c)(2). 

The notification requirement is added 

as a new DFARS 205.205–70. FAR 5.205 

addresses special synopsis situations. It 

currently covers R&D advance notices, 

public-private competitions under 

OMB–Circular A–76, and other 

requirements that differ somewhat from 

the general synopsis requirement at FAR 

5.201. Therefore, this appears to be the 

proper location for the bundling 

notification. However, because the new 

requirement applies only when using 

DoD funds, it is proposed as a new 

DFARS section 205.205–70, entitled 

‘‘Notification of bundling of DoD 

contracts.’’ The basic publication 

requirement is established here, but it 

was not deemed necessary to repeat the 

limitations and exclusions at section 

820(c) of the statute because nothing in 

the new language states or implies that 

the opposite is, or could be, the case. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

804. 

B. Regulatory Flexibility Act 

DoD does not expect that this interim 

rule will 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 does not impose 

any additional requirements on small 

businesses. In fact, availability of the 

notice of potential bundling may enable 

small businesses to compete for more 

work of which the firms might 

otherwise have been unaware. Prior to 

enactment of this statute, FAR 

10.001(c)(2) required notification of 

incumbent small businesses only in 

circumstances where one of the 

requirements to be bundled is currently 

held by a small business. Such 

notification of incumbent small 

businesses is designed to afford them 

the opportunity to react prior to a final 

decision on bundling existing 

requirements, thus providing these 

small businesses with an opportunity to 

engage with Government requirements 

officials in the interest of retaining 

unbundled business (if bundled, the 

small business might not have the 

necessary capability to enable it to bid). 

However, the new provision enables any 

small businesses, whether or not an 

incumbent contractor, to become aware 

of a potential bundled opportunity, 

generally 30 days prior to the release of 

the solicitation. This broader 

notification requirement will provide a 

much wider segment of the smallbusiness community awareness of 

upcoming business opportunities and 

then to either (1) submit a proposal for 

the bundled procurement or (2) interact 

with the requiring agency to request 

unbundling before the solicitation is 

finalized. Because of the potential for 

positive impact on small businesses, an 

Initial Regulatory Flexibility Analysis 

has been performed and is summarized 

above. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2009–D033) in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the interim rule does 

not contain any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. chapter 35, et seq. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD) that urgent and compelling 

circumstances exist to promulgate this 

interim rule without prior opportunity 

for public comments pursuant to 41 

U.S.C. 418b and FAR 1.501–3(b). This 

action is necessary because section 820 

of the National Defense Authorization 

Act for Fiscal Year 2010 became 

effective upon enactment, October 28, 

2009. The rule implements section 820’s 

requirement for contracting officers to 

publish a notification on 

FedBizOpps.gov at least 30 days prior to 

the release of a solicitation for a 

bundled acquisition. It is imperative 

that DoD contracting officers be made 

aware of this requirement as quickly as 

possible so that small businesses may 

have the benefit of the procurement 

planning information and the agency 

can comply with the statutory 

requirement. DoD will consider public 

comments received in response to this 

interim rule in the formation of the final 

rule. 

List of Subjects in 48 CFR Parts 205 and 

210 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 205 and 210 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 205 and 210 continues to read as 

follows: 

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

chapter 1. 


jlentini on DSKJ8SOYB1PROD with RULES2
40716 Federal Register / Vol. 75, No. 133 / Tuesday, July 13, 2010 / Rules and Regulations 

PART 205—PUBLICIZING CONTRACT 

ACTIONS 

■ 2. Section 205.205 is added to read as 

follows: 

205.205 Special situations. 

205.205–70 Notification of bundling of 

DoD contracts. 

(a) When a proposed acquisition is 

funded entirely using DoD funds and 

potentially involves bundling, the 

contracting officer shall, at least 30 days 

prior to the release of a solicitation or 

30 days prior to placing an order 

without a solicitation, publish in 

FedBizOpps.gov (or any successor site) 

a notification of the intent to bundle the 

requirement. In addition, if the agency 

has determined that measurably 

substantial benefits are expected to be 

derived as a result of bundling, the 

notification shall include a brief 

description of those benefits (see FAR 

7.107). 

(b) This requirement is in addition to 

the notification requirements at FAR 

10.001(c)(2)(i) and (ii). 

PART 210—MARKET RESEARCH 

■ 3. Paragraph (c)(2) is added to section 

210.001 to read as follows: 

210.001 Policy. 

* * * * * 

(c)(2) In addition to the notification 

requirements at FAR 10.001(c)(2)(i) and 

(ii), see 205.205–70 for the bundling 

notification publication requirement. 

[FR Doc. 2010–16898 Filed 7–12–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 216 

Defense Federal Acquisition 

Regulation Supplement; Notification 

Requirements for Awards of SingleSource Task or Delivery Orders 

(DFARS Case 2009–D036) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 814 of 

the National Defense Authorization Act 

for Fiscal Year 2010. 

DATES: Effective date: July 13, 2010. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before September 13, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2009–D036, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D036 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Meredith 

Murphy, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–1302; 

facsimile 703–602–0350. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This DFARS rule implements section 

814 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84), enacted October 28, 

2009. Section 814 is entitled 

‘‘Amendment to Notification 

Requirements for Awards of SingleSource Task or Delivery Orders.’’ 10 

U.S.C. 2304a(d)(3)(A) prohibits the 

award of a sole-source task or delivery 

order that is estimated to exceed $100 

million (including all options) unless 

the head of the agency determines in 

writing that— 

(1) The task or delivery orders 

expected under the contract are so 

integrally related that only a single 

source can reasonably perform the work; 

(2) The contract provides only for 

firm-fixed-price task orders or delivery 

orders for products for which unit 

prices are established in the contract or 

services for which prices are established 

in the contract for the specific tasks to 

be performed; 

(3) Only one source is qualified and 

capable of performing the work at a 

reasonable price to the government; or 

(4) Because of exceptional 

circumstances, it is necessary in the 

public interest to award the contract to 

a single source. 

Section 814 requires agency heads to 

notify the congressional defense 

committees within 30 days after making 

any determination for the reasons in (1) 

through (4) previously cited. In 

addition, if the task or delivery order 

concerns intelligence activities of the 

Department of Defense, the agency head 

also is required to provide notification 

within 30 days of the determination to 

the Permanent Select Committee on 

Intelligence of the House of 

Representatives if the order relates to 

tactical intelligence and intelligencerelated activities, and to the Select 

Committee on Intelligence of the Senate 

and the Permanent Select Committee on 

Intelligence of the House of 

Representatives if the order relates to 

intelligence and intelligence-related 

activities other than those activities 

previously mentioned. 

Given the need for consistency of 

content and format in the information 

provided to the Congress and the 

necessity for meeting the 30-day 

deadline for reporting the 

determinations to the Congress, agency 

heads are being asked to provide the 

determinations, not directly to the 

congressional committees, but to the 

Office of the Under Secretary of Defense 

(Acquisition, Technology, and Logistics) 

Defense Procurement and Acquisition 

Policy, Contract Policy and 

International Contracting. This will also 

enable a single office to oversee and 

manage the DoD picture for singlesource task and delivery orders. The 

new reporting requirement is located at 

DFARS 216.504(c)(1)(ii)(D)(2). 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

604. 

B. Regulatory Flexibility Act 

DoD does not expect that this interim 

rule will 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 does not impose 

any additional requirements on small 

businesses and is concerned with 

internal Government operating 

procedures. Section 814 of the FY 2010 

NDAA builds upon the existing 

requirements for justification of solesource awards of task or delivery order 

contracts that are estimated to exceed 

$100 million (including all options). 

The dollar threshold and the 

circumstances justifying a sole-source 

award are not changed by section 814. 

The new statute, however, requires 

agency heads to notify the congressional 

defense committees within 30 days after 


jlentini on DSKJ8SOYB1PROD with RULES2