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[Federal Register: January 15, 2010 (Volume 75, Number 10)]
[Proposed Rules]               
[Page 2457-2463]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja10-14]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 215, 234, 242, 244, and 252

RIN 0750-AG58

 
Defense Federal Acquisition Regulation Supplement; Business 
Systems--Definition and Administration (DFARS Case 2009-D038)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to improve the effectiveness of DoD 
oversight of contractor business systems.

DATES: Interested parties should submit comments in writing to the 
address shown below on or before March 16, 2010.

ADDRESSES: You may submit comments, identified by DFARS Case 2009-D038, 
using any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: dfars@osd.mil. Include DFARS Case 2009-D038 in the subject 
line of the message.
    Fax: 703-602-0350.
    Mail: Defense Acquisition Regulations System, Attn: Mr. Mark 
Gomersall, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, 
Washington, DC 20301-3062.
    Hand Delivery/Courier: Defense Acquisition Regulations System, 
Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-
3402.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, 703-602-0302.

SUPPLEMENTARY INFORMATION: 

A. Background

    Contractor business systems and internal controls are the first 
line of defense against waste, fraud, and abuse. Weak control systems 
increase the risk of unallowable and unreasonable costs on Government 
contracts. To improve the effectiveness of Defense Contract Management 
Agency (DCMA) and Defense Contract Audit Agency (DCAA) oversight of 
contractor business systems, DoD is considering a rule to clarify the 
definition and administration of contractor business systems as 
follows:
    1. DoD is proposing to define contractor business systems as 
accounting systems, estimating systems, purchasing systems, earned 
value management systems (EVMS), material management and accounting 
systems (MMAS), and property management systems.
    2. DoD is proposing to implement compliance enforcement mechanisms 
in the form of a business systems clause which includes payment 
withholding that allows administrative contracting officers to withhold 
a percentage of payments, under certain conditions, when a contractor's 
business system contains deficiencies. Under such circumstances, 
payments could be withheld on--
     Interim payments under--
    [cir] Cost reimbursement contracts;
    [cir] Incentive type contracts;
    [cir] Time-and-materials contracts;
    [cir] Labor-hour contracts;
     Progress payments; and
     Performance-based payments.
    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 has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 603. A copy of the analysis may be obtained 
from the point of contact specified herein. The analysis is summarized 
as follows:
    The objective of the rule is to establish a definition for 
contractor business systems and implement compliance mechanisms to 
improve DoD oversight of those contractor business systems. The 
requirements of the rule will apply to entities contractually required 
to maintain one or more of the defined contractor business systems.
    At this time DoD is unable to estimate the number of small entities 
to which this rule will apply. Therefore, 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-D038) in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies because 
the

[[Page 2458]]

proposed rule contains information collection requirements. DoD invites 
comments on the following aspects of the proposed rule: (a) Whether the 
collection of information is necessary for the proper performance of 
the functions of DoD, including whether the information will have 
practical utility; (b) the accuracy of the estimate of the burden of 
the information collection; (c) ways to enhance the quality, utility, 
and clarity of the information to be collected; and (d) ways to 
minimize the burden of the information collection on respondents, 
including the use of automated collection techniques or other forms of 
information technology. The following is a summary of the information 
collection requirement:
    The business systems clause in this proposed rule contains a 
requirement for contractors to respond to initial and final 
determinations of deficiencies. The information that contractors will 
be required to submit to respond to deficiencies in four of the six 
business systems defined in this rule has been approved by the Office 
of Management and Budget (OMB) as follows:
    (1) Accounting Systems--OMB Clearance 9000-0011;
    (2) Estimating Systems--OMB Clearance 0704-0232;
    (3) MMAS--OMB Clearance 0704-0250; and
    (4) Purchasing Systems--OMB Clearance 0704-0253.
    DoD is also proposing a new information collection requirement as 
follows:
    Title: Defense Federal Acquisition Regulation Supplement (DFARS) 
Business Systems--Definition and Administration.
    Type of Request: New request.
    The information that contractors will be required to submit to 
respond to deficiencies in contractors' EVMS is estimated as follows:
    Number of Respondents: 186.
    Responses per Respondent: 48.
    Annual Responses: 8,928.
    Burden per Response: 40 hours.
    Annual Burden Hours: 357,120 hours.
    The information that contractors will be required to submit to 
respond to deficiencies in contractors' property management systems is 
estimated as follows:
    Number of Respondents: 2,646.
    Responses per Respondent: 1.
    Annual Responses: 2,646.
    Average Burden per Response: 1.2 hours.
    Annual Burden Hours: 3,175 hours.
    Needs and Uses: DoD needs the information required by the business 
systems clause in this proposed rule to mitigate the risk of 
unallowable and unreasonable costs on Government contracts when a 
contractor has one or more deficiencies in a business system.
    Affected Public: Businesses or other for-profit institutions, and 
not-for-profit institutions.
    Frequency: On occasion.
    Written comments and recommendations on the proposed information 
collection should be sent to Ms. Jasmeet Seehra at the Office of 
Management and Budget, Desk Officer for DoD, Room 10236, New Executive 
Office Building, Washington, DC 20503, with a copy to the Defense 
Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD (AT&L) 
DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-
3062. Comments can be received from 30 to 60 days after the date of 
this notice, but comments to OMB will be most useful if received by OMB 
within 30 days after the date of this notice.
    To request more information on this proposed information collection 
or to obtain a copy of the proposal and associated collection 
instruments, please write to the Defense Acquisition Regulations 
System, Attn: Mr. Mark Gomersall, OUSD (AT&L) DPAP (DARS), IMD 3D139, 
3062 Defense Pentagon, Washington, DC 20301-3062.

List of Subjects in 48 CFR Parts 215, 234, 242, 244, and 252

    Government procurement.

Amy G. Williams,
Editor, Defense Acquisition Regulations System.

    Therefore, DoD proposes to amend 48 CFR parts 215, 234, 242, 244, 
and 252 as follows:
    1. The authority citation for 48 CFR parts 215, 234, 242, 244, and 
252 continues to read as follows:

    Authority:  41 U.S.C. 421 and 48 CFR Chapter 1.

PART 215--CONTRACTING BY NEGOTIATION

    2. Amend section 215.407-5-70 by:
    a. Revising paragraphs (a)(4), (c)(3), and (d);
    b. Removing paragraphs (e) and (f);
    c. Redesignating paragraph (g) as paragraph (e);
    d. Adding new paragraphs (f), (g), and (h) to read as follows:


215.407-5-70  Disclosure, maintenance, and review requirements.

    (a) * * *
    (4) Deficiency means failure to maintain an element of an 
acceptable estimating system.
* * * * *
    (c) * * *
    (3) The auditor conducts estimating system reviews.
* * * * *
    (d) Characteristics of an acceptable estimating system--(1) 
General. An acceptable system shall provide for the use of appropriate 
source data, utilize sound estimating techniques and good judgment, 
maintain a consistent approach, and adhere to established policies and 
procedures.
    (2) Evaluation. In evaluating the acceptability of a contractor's 
estimating system, the ACO shall consider whether the contractor's 
estimating system complies with the requirements for an acceptable 
estimating system as contained in 252.215-7002(d).
* * * * *
    (f) The ACO, in consultation with the auditor, shall--
    (1) Approve the system; and
    (2) Pursue correction of any system deficiencies.
    (g) Disposition of audit findings--(1) Reporting of audit findings. 
The auditor shall document findings and recommendations in a report to 
the ACO.
    (2) Notification of initial determination. The ACO shall--
    (i) Provide a notification of any system deficiencies to the 
contractor, evaluate contractor responses, and make determinations to 
disapprove the system in accordance with the clause at 252.215-7002, 
Cost Estimating System Requirements;
    (ii) Withhold payments in accordance with 252.242-7XXX, Business 
Systems, if applicable; and
    (iii) Follow the procedures at 252.215-7002, Cost Estimating System 
Requirements and PGI 215.407-5-70(g) for disposition of estimating 
system deficiencies.
    (h) The ACO shall approve the estimating system when the ACO 
determines that the contractor has substantially corrected the system 
deficiencies. The ACO shall notify the contractor, auditor, payment 
office, appropriate action officers responsible for reporting past 
performance at the requiring activities, and affected contracting and 
contract administration activities of the system approval and the ACO's 
decision, as appropriate, to reduce or discontinue the withholding of 
payments in accordance with 252.242-7XXX, Business Systems.

PART 234--MAJOR SYSTEM ACQUISITION

    2. Amend section 234.201 by adding paragraphs (5), (6), and (7) to 
read as follows:

[[Page 2459]]

234.201   Policy.

* * * * *
    (5) The cognizant ACO shall--
    (i) Determine whether the contractor is compliant with the 
contractual EVMS requirements; and
    (ii) Pursue correction of any noncompliance with the contractual 
EVMS requirements.
    (6) Disposition of system deficiencies--(i) Reporting of system 
deficiencies. The cognizant functional specialist or auditor shall 
document findings and recommendations in a report to the ACO.
    (ii) Notification of initial determination. The ACO shall--
    (A) Provide a notification of system deficiencies to the 
contractor, evaluate contractor responses, and make determinations of 
noncompliance in accordance with the clause at 252.234-7002, Earned 
Value Management System;
    (B) Withhold payments in accordance with 252.242-7XXX, Business 
Systems, if applicable; and
    (C) Follow the procedures at 252.234-7002(h), Earned Value 
Management System, and PGI 234.201 for disposition of EVMS 
deficiencies.
    (7) Withdrawal of finding of system noncompliance. The ACO shall 
withdraw the finding of system noncompliance when the ACO determines 
that the contractor has substantially corrected the system 
deficiencies. The ACO shall notify the contractor, auditor, payment 
office, and affected contracting and contract administration activities 
of the system approval and the ACO's decision, as appropriate, to 
reduce or discontinue the withholding of payments in accordance with 
252.242-7XXX, Business Systems.

PART 242--CONTRACT ADMINISTRATION AND AUDIT SERVICES

    3. Add subpart 242.70 to read as follows:

Subpart 242.70--Business Systems


242.70X1   Business system deficiencies.

    (a) Definitions. ``Acceptable business systems'' and ``Business 
systems'' are defined in the clause at 252.242-7XXX, Business Systems.
    (b) Reporting of deficiencies. The auditor or other cognizant 
functional specialist shall document deficiencies in a report to the 
ACO. The report shall describe the deficiencies in sufficient detail to 
allow the contracting officer to understand what the contractor would 
need to correct to comply with the applicable standard or system 
requirement, and the potential magnitude of the risk to the Government 
posed by the deficiency. Follow the procedures at PGI 242.70X1(b) for 
reporting of deficiencies.
    (1) Initial determination of deficiencies. If the ACO makes a 
determination that there is a system deficiency, the ACO shall provide 
an initial determination of deficiencies and a copy of the report to 
the contractor and require the contractor to submit a written response 
in accordance with the clause at 252.242-7XXX, Business Systems.
    (2) Evaluation of contractor's response. The ACO, in consultation 
with the auditor or cognizant functional specialist, shall evaluate the 
contractor's response and make a final determination.
    (3) Notification of ACO final determination. The ACO shall notify 
the contractor in writing of the ACO's final determination with copies 
provided, as applicable, to the auditor; other cognizant functional 
specialists; and affected contracting activities and contract 
administration offices. The ACO shall take one of the following 
actions--
    (i) Withdraw the initial determination of deficiencies. The ACO 
shall withdraw the initial notification if the contractor has corrected 
all deficiencies or the ACO agrees with the contractor's written 
response disagreeing with the initial determination of deficiencies; or
    (ii) The ACO shall notify the contractor of the ACO's decision to 
implement payment withholding in accordance with the clause at 252.242-
7XXX, Business Systems. The notice shall--
    (A) Identify any deficiencies requiring correction;
    (B) Inform the contractor that--
    (1) The contractor must correct the deficiencies;
    (2) The contractor must submit an acceptable corrective action plan 
within 45 days if the deficiencies have not been corrected within that 
45 day timeframe;
    (3) Payments shall be withheld in accordance with 252.242-7XXX, 
Business Systems, until the ACO determines that all deficiencies have 
been corrected; and
    (4) The ACO reserves the right to take other actions within the 
terms and conditions of the contract.
    (c) Monitoring contractor's corrective action. The Government shall 
monitor the contractor's progress in correcting the deficiencies and 
shall notify the contractor of the decision to decrease or increase the 
amount of payment withholding in accordance with 252.242-7XXX, Business 
Systems.
    (d) Correction of system deficiencies.
    (1) If the contractor notifies the ACO that the contractor has 
corrected the system deficiencies, the ACO shall request the auditor or 
other cognizant functional specialist to review the correction to 
determine if the deficiencies have been resolved.
    (2) The ACO shall determine if the contractor has corrected the 
deficiencies.
    (3) If the ACO determines the contractor has corrected all 
deficiencies, the ACO shall discontinue withholding payments.
    (e) System review matrix. Refer to the matrix at PGI 242.70X1(e) to 
cross-reference DCAA internal control reviews and other business system 
audits to the list of ``business systems'' defined at 252.242-7XXX, 
Business Systems.


242.70X2   Contract clause.

    Use the clause at 252.242-XXXX, Business Systems, in solicitations 
and contracts when the solicitation or contract includes any of the 
following clauses:
    (a) 52.244-2, Subcontracts.
    (b) 52.245-1, Government Property.
    (c) 252.215-7002, Cost Estimating System Requirements.
    (d) 252.234-7002, Earned Value Management System.
    (e) 252.242-7004, Material Management and Accounting System.
    (f) 252.242-7YYY, Accounting System Administration.
    4. Amend section 242.7203 by:
    a. Removing paragraph (c);
    b. Redesignating paragraph (d) as paragraph (c); and c. Revising 
the newly designated paragraph (c) to read as follows:


242.7203   Review procedures.

* * * * *
    (c) System deficiencies--(1) Report of MMAS review findings. The 
auditor shall document the MMAS review findings and recommendations in 
the MMAS report to the ACO. If there are any MMAS deficiencies, the 
report shall provide an estimate of the adverse impact on the 
Government resulting from those deficiencies.
    (2) Notification of initial determination. The ACO shall--
    (i) Provide a notification of system deficiencies to the 
contractor, evaluate contractor responses, and make determinations to 
disapprove the system in accordance with the clause at 252.242-7004, 
Material Management and Accounting System;
    (ii) Withhold payments in accordance with 252.242-7XXX, Business 
Systems, if applicable; and

[[Page 2460]]

    (iii) Follow the procedures at 252.242-7004(d), Material Management 
and Accounting System, and PGI 242.7203 for disposition of MMAS 
deficiencies.
    (3) Withdrawal of MMAS disapproval. The ACO shall approve the MMAS 
when the ACO determines that the contractor has substantially corrected 
the system deficiencies. The ACO shall notify the contractor, auditor, 
payment office, and affected contracting and contract administration 
activities of the system approval and the ACO's decision, as 
appropriate, to reduce or discontinue the withholding of payments in 
accordance with 252.242-7XXX, Business Systems.
    5. Revise the heading of subpart 242.75 to read as follows:

Subpart 242.75--Contractor Accounting Systems

    6. Revise section 242.7501 to read as follows:


242.7501   Policy.

    (a) Contractors receiving cost-reimbursement, incentive type, time-
and-materials, or labor-hour contracts, or contracts which provide for 
progress payments based on costs or on a percentage or stage of 
completion, shall maintain an acceptable accounting system as defined 
in the clause at 252.242-7YYY, Accounting System Administration.
    (b) The ACO is responsible for approving a contractor's accounting 
system.
    7. Revise section 242.7502 to read as follows:


242.7502   Procedures.

    (a) Definitions. ``Acceptable accounting system,'' and ``accounting 
system'' are defined in the clause at 252.242-7YYY, Accounting System 
Administration.
    (b) The ACO shall determine whether the accounting system contains 
deficiencies that need to be corrected in accordance with the clause 
252.242-7YYY, Accounting System Administration.
    (c) Disposition of audit findings--(1) Reporting of audit findings. 
The auditor shall document findings and recommendations in a report to 
the ACO. The report shall describe the deficiencies in sufficient 
detail to allow the contracting officer to understand what the 
contractor would need to correct to comply with the applicable standard 
or system requirement, and the potential magnitude of the risk to the 
Government posed by the deficiency. Follow the procedures at PGI 
242.70X1(b) for reporting of deficiencies.
    (2) Notification of initial determination. The ACO shall--
    (i) Provide a notification of system deficiencies to the 
contractor, evaluate contractor responses, and make determinations to 
disapprove the system in accordance with the clause at 252.242-XXXX, 
Accounting System Administration;
    (ii) Withhold payments in accordance with 252.242-7XXX, Business 
Systems, if applicable; and
    (iii) Follow the procedures at 252.242-7XXX(e), Accounting System 
Administration, and PGI 242.7502(c)(2) for disposition of accounting 
system deficiencies.
    (d) Withdrawal of accounting system disapproval. The ACO shall 
approve the accounting system when the ACO determines that the 
contractor has substantially corrected the system deficiencies. The ACO 
shall notify the contractor, auditor, payment office, and affected 
contracting and contract administration activities of the system 
approval and the ACO's decision, as appropriate, to reduce or 
discontinue the withholding of payments in accordance with 252.242-
7XXX, Business Systems.
    8. Add section 242.7503 to read as follows:


242.7503   Contract clause.

    Use the clause at 252.242-7YYY, Accounting System Administration, 
in solicitations and contracts when contemplating--
    (a) A cost-reimbursement, incentive type, time-and-materials, or 
labor-hour contract;
    (b) A fixed-price contract with progress payments made on the basis 
of costs incurred by the contractor or on a percentage or stage of 
completion;
    (c) A construction contract that includes the clause 52.232-27, 
Prompt Payment for Construction Contracts.

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

    9. Revise section 244.305-70 to read as follows:


244.305-70   Granting, withholding, or withdrawing approval.

    Use this subsection instead of FAR 44.305-2(c) and 44.305-3(b).
    (a) The ACO, in consultation with the purchasing system analyst 
(PSA) or auditor, shall--
    (1) Grant, withhold, or withdraw system approval; and
    (2) Pursue correction of any system deficiencies.
    (b) Disposition of system deficiencies--(1) Reporting of 
deficiencies. The PSA or auditor shall document findings and 
recommendations in a report to the ACO.
    (2) Notification of initial determination. The ACO shall--
    (i) Provide a notification of system deficiencies to the 
contractor, evaluate contractor responses, and make determinations to 
disapprove the system in accordance with the clause at 252.242-XXXX, 
Purchasing System Administration, and follow the procedures at PGI 
244.305-70; and
    (ii) Withhold payments in accordance with 252.242-7XXX, Business 
Systems, if applicable.
    (3) The ACO shall approve the purchasing system when the ACO 
determines that the contractor has substantially corrected the system 
deficiencies. The ACO shall notify the contractor, auditor, payment 
office, and affected contracting and contract administration activities 
of the system approval and the ACO's decision, as appropriate, to 
reduce or discontinue the withholding of payments in accordance with 
252.242-7XXX, Business Systems.
    10. Add section 244.305-7X to read as follows:


244.305-7X   Contract clause.

    Use the clause at 252.244-7XXX, Contractor Purchasing System-
Administration, in solicitations and contracts containing the clause at 
FAR 52.244-2, Subcontracts.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    11. Amend section 252.215-7002 by:
    a. Revising the clause date;
    b. Revising the definition of ``acceptable estimating system'' in 
paragraph (a);
    c. Adding new paragraph (d)(4);
    d. Revising paragraph (e); and
    e. Adding new paragraph (f) to read as follows:


252.215-7002   Cost estimating system requirements.

* * * * *
Cost Estimating System Requirements (Date)
    (a) Definitions.
    Acceptable estimating system means an estimating system that 
complies with, but is not limited to, the system requirements in 
paragraph (d) of this clause, and provides for a system that--
    (1) Is maintained, reliable, and consistently applied;
    (2) Produces verifiable, supportable, and documented cost 
estimates that are an acceptable basis for negotiation of fair and 
reasonable prices;

[[Page 2461]]

    (3) Is consistent with and integrated with the Contractor's 
related management systems; and
    (4) Is subject to applicable financial control systems.
* * * * *
    (d) * * *
    (4) The Contractor's estimating system shall provide for the use 
of appropriate source data, utilize sound estimating techniques and 
good judgment, maintain a consistent approach, and adhere to 
established policies and procedures. An acceptable estimating system 
shall accomplish, but not be limited to, the following functions--
    (i) Establish clear responsibility for preparation, review, and 
approval of cost estimates;
    (ii) Provide a written description of the organization and 
duties of the personnel responsible for preparing, reviewing, and 
approving cost estimates;
    (iii) Assure that relevant personnel have sufficient training, 
experience, and guidance to perform estimating tasks in accordance 
with the Contractor's established procedures;
    (iv) Identify the sources of data and the estimating methods and 
rationale used in developing cost estimates;
    (v) Provide for appropriate supervision throughout the 
estimating process;
    (vi) Provide for consistent application of estimating 
techniques;
    (vii) Provide for detection and timely correction of errors;
    (viii) Protect against cost duplication and omissions;
    (ix) Provide for the use of historical experience, including 
historical vendor pricing information, where appropriate;
    (x) Require use of appropriate analytical methods;
    (xi) Integrate information available from other management 
systems, where appropriate;
    (xii) Require management review including verification that the 
company's estimating policies, procedures, and practices comply with 
this regulation;
    (xiii) Provide for internal review of and accountability for the 
acceptability of the estimating system, including the comparison of 
projected results to actual results and an analysis of any 
differences;
    (xiv) Provide procedures to update cost estimates in a timely 
manner throughout the negotiation process; and
    (xv) Address responsibility for review and analysis of the 
reasonableness of subcontract prices.
    (e) System deficiencies.
    (1) The ACO will provide an initial notification to the 
Contractor of system deficiencies. The initial notification will 
describe the deficiency in sufficient detail to allow the Contractor 
to understand what actions are necessary to correct the 
deficiencies.
    (2) The Contractor shall respond within 30 days to a written 
initial notification from the ACO that identifies deficiencies in 
the Contractor's estimating system. If the Contractor disagrees with 
the initial notification, the Contractor shall state in writing its 
rationale for disagreeing.
    (3) The ACO will evaluate the Contractor's response and notify 
the Contractor of the determination concerning remaining 
deficiencies, the adequacy of any proposed or completed corrective 
action, and system disapproval, if applicable.
    (f) Withholding payments. If the ACO determines the Contractor's 
estimating system contains one or more deficiencies, and the 
contract includes the clause at 252.242-7XXX, Business Systems, the 
ACO will withhold payments in accordance with that clause.
(End of clause)
    12. Amend section 252.234-7002 by:
    a. Revising the clause date;
    b. Redesignating existing paragraph (h) as paragraph (j);
    c. Adding new paragraphs (h) and (i) to read as follows:


252.234-7002  Earned Value Management System.

* * * * *
Earned Value Management System (Date)
* * * * *
    (h) System deficiencies. (1) The ACO will provide an initial 
notification to the Contractor of system deficiencies. The initial 
notification will describe the deficiency in sufficient detail to 
allow the Contractor to understand what actions are necessary to 
correct the deficiencies.
    (2) The Contractor shall respond within 30 days to a written 
initial notification from the ACO that identifies deficiencies in 
the Contractor's EVMS. If the Contractor disagrees with the initial 
notification, the Contractor shall state in writing its rationale 
for disagreeing.
    (3) The ACO will evaluate the Contractor's response and notify 
the Contractor of the determination concerning remaining 
deficiencies, the adequacy of any proposed or completed corrective 
action, and any portions of the system that are noncompliant with 
ANSI\EIA-748.
    (i) Withholding payments. If the ACO determines the Contractor's 
EVMS contains one or more deficiencies, and the contract includes 
the clause at 252.242-7XXX, Business Systems, the ACO will withhold 
payments in accordance with that clause.
* * * * *
(End of clause)
    13. Amend section 252.242-7004 by:
    a. Revising the clause date;
    b. Revising paragraph (d);
    c. Redesignating existing paragraph (e) as paragraph (f); and
    d. Adding new paragraph (e) to read as follows:


252.242-7004  Material management and accounting system.

* * * * *
Material Management and Accounting System (Date)
* * * * *
    (d) System deficiencies. (1) The ACO will provide an initial 
notification to the Contractor of system deficiencies. The initial 
notification will describe the deficiency in sufficient detail to 
allow the Contractor to understand what actions are necessary to 
correct the deficiencies.
    (2) The Contractor shall respond within 30 days to a written 
initial notification from the ACO that identifies deficiencies in 
the Contractor's accounting system. If the Contractor disagrees with 
the initial notification, the Contractor shall state in writing its 
rationale for disagreeing.
    (3) The ACO will evaluate the Contractor's response and notify 
the Contractor of the determination concerning remaining 
deficiencies, the adequacy of any proposed or completed corrective 
action, and system disapproval if applicable.
    (e) Withholding payments. If the ACO determines the Contractor's 
MMAS contains one or more deficiencies, and this contract includes 
the clause at 252.242-7XXX, Business Systems, the ACO will withhold 
payments in accordance with that clause.
* * * * *
    14. Add section 252.242-7XXX to read as follows:


252.242-7XXX  Business systems.

    As prescribed in 242.70X2, use the following clause:
Business Systems (Date)
    (a) Definitions. As used in this clause--
    Acceptable business systems means business systems that comply 
with the terms and conditions of this contract.
    Business systems means--
    (1) Accounting system, if this contract includes the clause at 
252.242-7YYY, Accounting System Administration;
    (2) Earned value management system, if this contract includes 
the clause at 252.234-7002, Earned Value Management System;
    (3) Estimating system, if this contract includes the clause at 
252.215-7002, Cost Estimating System Requirements;
    (4) Material management and accounting system, if this contract 
includes the clause at 252.242-7004, Material Management and 
Accounting System;
    (5) Property management system, if this contract includes the 
clause at 52.245-1, Government Property; and
    (6) Purchasing system, if this contract includes the clause at 
52.244-2, Subcontracts.
    (b) General. The Contractor shall establish and maintain 
acceptable business systems in accordance with the terms and 
conditions of this contract.
    (c) System deficiencies. (1) The Contractor shall respond in 
writing within 30 days to an initial determination of deficiencies 
from the ACO that identifies deficiencies in any of the Contractor's 
business system.
    (2) The ACO will evaluate the Contractor's response and notify 
the Contractor in writing of the final determination as to whether 
the business system contains deficiencies. If the ACO determines 
that the Contractor's business system contains deficiencies, the 
final determination will include a notice of a decision to withhold 
payments.

[[Page 2462]]

    (d) Withholding payments. (1) If the Contractor receives a final 
determination with a notice of the ACO's decision to withhold 
payments for deficiencies in a business system required under this 
contract, the ACO will immediately withhold ten percent of each of 
the Contractor's payments under this contract. The Contractor shall, 
within 45 days of receipt of the notice, either correct the 
deficiencies or submit an acceptable corrective action plan showing 
milestones and actions to eliminate the deficiencies.
    (2) If the Contractor submits an acceptable corrective action 
plan within 45 days of receipt of a notice of the ACO's intent to 
withhold, but has not completely corrected the identified 
deficiencies, the ACO will reduce the amount withheld to an amount 
equal to five percent of each payment until the ACO determines that 
the Contractor has corrected the deficiencies in the business 
system. However, if at any time the ACO determines that the 
Contractor fails to follow the accepted corrective action, the ACO 
will increase the amount of payment withheld to ten percent of each 
payment under this contract until the ACO determines that the 
Contractor has completely corrected the deficiencies in the business 
system.
    (3) If the ACO is withholding payments for deficiencies in more 
than one business system, the cumulative percentage of payments 
withheld shall not exceed fifty percent on this contract.
    (4) Notwithstanding any other rights or remedies of the 
Government under this contract, including paragraphs (d)(1) through 
(d)(3) of this clause, if the ACO determines that there are one or 
more system deficiencies that are highly likely to lead to improper 
contract payments being made, or represent an unacceptable risk of 
loss to the Government, then the ACO will withhold up to one-hundred 
percent of payments until the ACO determines that the Contractor has 
corrected the deficiencies.
    (5) For the purpose of this clause, payment means any of the 
following payments authorized under this contract:
    (i) Interim payments under--
    (A) Cost reimbursement contracts;
    (B) Incentive type contracts;
    (C) Time-and-materials contracts;
    (D) Labor-hour contracts.
    (ii) Progress payments.
    (iii) Performance-based payments.
    (6) The withholding of any amount or subsequent payment to the 
Contractor shall not be construed as a waiver of any rights or 
remedies the Government has under this contract.
    (7) Notwithstanding the provisions of any clause in this 
contract providing for interim, partial, or other payment on any 
basis, the ACO may withhold payment in accordance with the 
provisions of this clause.
    (8) The payment withholding authorized in this clause is not 
subject to the interest-penalty provisions of the Prompt Payment 
Act.
    (e) Correction of deficiencies. (1) The Contractor shall notify 
the ACO in writing when the Contractor has corrected the business 
system's deficiencies.
    (2) Once the Contractor has notified the ACO that deficiencies 
have been corrected, the ACO will take one of the following actions:
    (i) If the ACO determines the Contractor has corrected all 
deficiencies in a business system, the ACO will discontinue the 
payment withholding under this contract associated with that 
business system and release any monies previously withheld that are 
not also being withheld due to deficiencies on other business 
systems under this contract. Any payment withholding in effect on 
other business systems under this contract will remain in effect 
until the deficiencies for those business systems are corrected.
    (ii) If the ACO determines the Contractor has not corrected all 
deficiencies, the ACO will continue the withholding payments in 
accordance with paragraph (d) of this clause and not release any 
monies previously withheld.
(End of clause)
    15. Add section 252.242-7YYY to read as follows:


252.242-7YYY  Accounting system administration.

    As prescribed in 242.7503, use the following clause:
Accounting System Administration (Date)
    (a) Definitions. As used in this clause--
    (1) Acceptable accounting system means a system that complies 
with the requirements under paragraph (d) of this clause to provide 
reasonable assurance that--
    (i) Applicable laws and regulations are complied with;
    (ii) The accounting system and cost data are reliable;
    (iii) Risk of misallocations and mischarges are minimized; and
    (iv) Contract allocations and charges are consistent with 
invoice procedures.
    (2) Accounting system means the Contractor's system or systems 
for accounting methods, procedures, and controls established to 
gather, record, classify, analyze, summarize, interpret, and present 
accurate and timely financial data for reporting data in compliance 
with applicable laws, regulations, and management decisions.
    (3) Deficiency means a failure to maintain an element of an 
acceptable accounting system.
    (b) General. The Contractor shall establish and maintain an 
acceptable accounting system. Failure to maintain an acceptable 
accounting system, as defined in this clause, may result in 
disapproval of the system by the ACO and/or withholding of payments.
    (c) System requirements. The Contractor's accounting system 
shall be in compliance with applicable laws and ensure the proper 
recording, accumulating, and billing of costs on Government 
contracts, including but not limited to providing, as applicable--
    (1) A basic structure that defines the form and nature of the 
organization as well as the management functions and reporting 
relationships;
    (2) Proper segregation of direct costs from indirect costs;
    (3) Identification and accumulation of direct costs by contract;
    (4) A logical and consistent method for the accumulation and 
allocation of indirect costs to intermediate and final cost 
objectives;
    (5) Accumulation of costs under general ledger control;
    (6) Reconciliation of subsidiary cost ledgers and cost 
objectives to general ledger;
    (7) Approval and documentation of adjusting entries;
    (8) Periodic monitoring of the system, as appropriate;
    (9) A timekeeping system that identifies employees' labor by 
intermediate or final cost objectives;
    (10) A labor distribution system that charges direct and 
indirect labor to the appropriate cost objectives;
    (11) Interim (at least monthly) determination of costs charged 
to a contract through routine posting of books of account;
    (12) Exclusion from costs charged to Government contracts of 
amounts which are not allowable in terms of FAR Part 31, Contract 
Cost Principles and Procedures, and other contract provisions;
    (13) Identification of costs by contract line item and by units 
(as if each unit or line item were a separate contract) if required 
by the contract;
    (14) Segregation of preproduction costs from production costs;
    (15) Cost accounting information as required:
    (i) By contract clauses concerning limitation of cost (FAR 
52.232-20) or limitation on payments (FAR 52.216-16); and
    (ii) To readily calculate indirect cost rates from the books of 
accounts;
    (16) Billings that can be reconciled to the cost accounts for 
both current and cumulative amounts claimed and comply with contract 
terms; and
    (17) Adequate, reliable data for use in pricing follow-on 
acquisitions.
    (d) System deficiencies. (1) The ACO will provide an initial 
notification to the Contractor of system deficiencies. The initial 
notification will describe the deficiency in sufficient detail to 
allow the Contractor to understand what actions are necessary to 
correct the deficiencies.
    (2) The Contractor shall respond within 30 days to a written 
initial notification from the ACO that identifies deficiencies in 
the Contractor's accounting system. If the Contractor disagrees with 
the initial notification, the Contractor shall state in writing its 
rationale for disagreeing.
    (3) The ACO will evaluate the Contractor's response and notify 
the Contractor of the determination concerning remaining 
deficiencies, the adequacy of any proposed or completed corrective 
action, and system disapproval if applicable.
    (e) Withholding payments. If the ACO determines the Contractor's 
accounting system contains one or more deficiencies, and this 
contract includes the clause at 252.242-7XXX, Business Systems, the 
ACO will withhold payments in accordance with that clause.
(End of clause)
    16. Add section 252.244-7XXX to read as follows:

[[Page 2463]]

252.244-7XXX  Contractor purchasing system administration.

    As prescribed in 244.305-7X, insert the following clause:
Contractor Purchasing System Administration (Date)
    (a) Definitions. As used in this clause--
    Deficiency means a failure to maintain any element of an 
acceptable purchasing system.
    Purchasing system means the Contractor's system or systems for 
purchasing and subcontracting including make or buy decisions, the 
selection of vendors, analysis of quoted prices, negotiation of 
prices with vendors, placing and administering of orders, and 
expediting delivery of materials. Purchasing system includes, but is 
not limited to--
    (1) Internal audits or management reviews, training, and 
policies and procedures for the purchasing department to ensure the 
integrity of the purchasing system;
    (2) Policies and procedures to assure purchase orders and 
subcontracts contain all flow down clauses, including terms and 
conditions required by the prime contract and any clauses required 
to carry out the requirements of the prime contract;
    (3) An organizational and administrative structure that ensures 
effective and efficient procurement of required quality materials 
and parts at the most economical cost from responsible and reliable 
sources;
    (4) Selection processes to ensure the most responsive and 
responsible sources for furnishing required quality parts and 
materials and to promote competitive sourcing among dependable 
suppliers so that purchases are reasonably priced and from sources 
that meet contractor quality requirements;
    (5) Performance of price or cost analysis on purchasing actions; 
and
    (6) Procedures to ensure that proper types of subcontracts are 
selected and that there are controls over subcontracting, including 
oversight and surveillance of subcontracted effort.
    (b) General. The Contractor shall establish and maintain an 
acceptable purchasing system. Failure to maintain an acceptable 
purchasing system, as defined in this clause, may result in 
disapproval of the system by the ACO and/or withholding of payments.
    (c) System requirements. (1) Have an adequate system description 
including policies, procedures, and operating instructions that 
comply with the FAR and DFARS.
    (2) Ensure that all applicable purchase orders and subcontracts 
contain all flow down clauses, including terms and conditions and 
any other clauses needed to carry out the requirements of the prime 
contract.
    (3) Maintain an organization plan that establishes clear lines 
of authority and responsibility.
    (4) Purchase orders are based on authorized requisitions and 
include complete history files.
    (5) Establish and maintain adequate documentation to provide a 
complete and accurate history of purchase transactions to support 
vendors selected and prices paid.
    (6) Apply a consistent make or buy policy that is in the best 
interest of the Government.
    (7) Use competitive sourcing to the maximum extent practicable 
and ensure debarred or suspended contractors are properly excluded 
from contract award.
    (8) Evaluate price, quality, delivery, technical capabilities, 
and financial capabilities of competing vendors.
    (9) Require management level justification and cost/price 
analysis as applicable for any sole or single source award.
    (10) Perform appropriate cost or price analysis and technical 
evaluation for each subcontractor and supplier proposal or quote.
    (11) Document negotiations in accordance with FAR 15.406-3.
    (12) Seek, take, and document appropriate purchase discounts, 
including cash discounts, trade discounts, quantity discounts, 
rebates, freight allowances, and company-wide volume discounts.
    (13) Ensure proper type of contract selection and prohibit 
issuance of cost-plus-a-percentage-of-cost subcontracts.
    (14) Maintain subcontract surveillance to ensure timely delivery 
of an acceptable product and procedures to notify the Government of 
potential subcontract problems that may impact delivery, quantity, 
or price.
    (15) Document and justify reasons for subcontract changes that 
affect cost or price.
    (16) Notify the Government of the award of an auditable 
subcontract and perform adequate audits of those subcontracts.
    (17) Enforce adequate policies on conflict of interest, gifts, 
and gratuities, including the requirements of the Anti-Kickback Act.
    (d) System deficiencies. (1) The ACO will provide an initial 
notification to the Contractor of system deficiencies. The initial 
notification will describe the deficiency in sufficient detail to 
allow the contractor to understand what actions are necessary to 
correct the deficiencies.
    (2) The Contractor shall respond within 30 days to a written 
initial notification from the ACO that identifies deficiencies in 
the Contractor's purchasing system. If the Contractor disagrees with 
the initial notification, the Contractor shall state in writing its 
rationale for disagreeing.
    (3) The ACO will evaluate the Contractor's response and notify 
the Contractor of the determination concerning remaining 
deficiencies, the adequacy of any proposed or completed corrective 
action, and system disapproval, if applicable.
    (e) Withholding payments. If the ACO determines the Contractor's 
purchasing system contains one or more deficiencies, and the 
contract includes the clause at 252.242-7XXX, Business Systems, the 
ACO will withhold payments in accordance with that clause.
(End of clause)
[FR Doc. 2010-392 Filed 1-14-10; 8:45 am]
BILLING CODE 5001-08-P
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