Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2415 

termination for cause or default is just 

one consideration in making a 

determination of contractor 

responsibility. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment under 

41 U.S.C. 418b is not required. 

However, DoD will consider comments 

from small entities concerning the 

affected DFARS subpart in accordance 

with 5 U.S.C. 610. Such comments 

should cite DFARS Case 2008–D022. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Part 209 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 209 is 

amended as follows: 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 1. The authority citation for 48 CFR 

part 209 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 209.105–1 is revised to read 

as follows: 

209.105–1 Obtaining information. 

(1) For guidance on using the 

Excluded Parties List System, see PGI 

209.105–1. 

(2) A satisfactory performance record 

is a factor in determining contractor 

responsibility (see FAR 9.104–1(c)). One 

source of information relating to 

contractor performance is the Past 

Performance Information Retrieval 

System (PPIRS), available at http:// 

www.ppirs.gov. Information relating to 

contract terminations for cause and for 

default is also available through PPIRS 

(see PGI 212.403(c) and PGI 249.470). 

This termination information is just one 

consideration in determining contractor 

responsibility. 

[FR Doc. E9–668 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 212 

RIN 0750–AG17 

Defense Federal Acquisition 

Regulation Supplement; Pilot Program 

for Transition to Follow-On 

Contracting After Use of Other 

Transaction Authority (DFARS Case 

2008–D030) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement Section 824 of 

the National Defense Authorization Act 

for Fiscal Year 2009. Section 824 

amended the DoD pilot program for 

transition to follow-on contracting after 

use of other transaction authority, to 

establish a new program expiration date 

and to include items developed under 

research projects within the scope of the 

program. 

DATES: Effective date: January 15, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before March 16, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D030, 

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 2008–D030 in the subject 

line of the message. 

Æ Fax: 703–602–7887. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Angie 

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

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Æ Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Angie Sawyer, 703–602–8384. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule amends the DoD 

pilot program addressed in DFARS 

Subpart 212.70, Pilot Program for 

Transition to Follow-On Contracting 

After Use of Other Transaction 

Authority. The pilot program 

implements Section 845(e) of the 

National Defense Authorization Act for 

Fiscal Year 1994 (10 U.S.C. 2371 note), 

and provides that certain items that do 

not otherwise meet the definition of 

‘‘commercial item’’ may be treated as 

commercial items in the award of 

contracts and subcontracts that follow 

an other transaction agreement. Section 

824 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417) amended the 

authority for the pilot program to 

establish a new program expiration date 

of September 30, 2010, and to add items 

developed under research projects in 

accordance with 10 U.S.C. 2371 to the 

types of items to which the program 

applies. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

Although the rule is expected to ease 

the transition of nontraditional defense 

contractors from the use of other 

transaction agreements to standard 

contracts, the economic impact is not 

expected to be substantial. Therefore, 

DoD has not performed an initial 

regulatory flexibility analysis. DoD 

invites comments from small businesses 

and other interested parties. DoD also 

will consider comments from small 

entities concerning the affected DFARS 

subpart in accordance with 5 U.S.C. 

610. Such comments should be 

submitted separately and should cite 

DFARS Case 2008–D030. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

mstockstill on PROD1PC66 with RULES

2416 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

D. Determination to Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. This interim rule implements 

Section 824 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417). Section 824 amended 

the DoD pilot program that permits the 

use of streamlined procedures in the 

award of contracts and subcontracts that 

follow other transaction agreements, to 

include items developed under research 

projects within the scope of the 

program. The pilot program is intended 

to ease the transition of nontraditional 

defense contractors from the use of 

other transaction agreements to standard 

contracts. Comments received in 

response to this interim rule will be 

considered in the formation of the final 

rule. 

List of Subjects in 48 CFR Part 212 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 212 is 

amended as follows: 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 1. The authority citation for 48 CFR 

part 212 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 212.7002–1 is amended by 

revising paragraphs (a)(2) and (4) to read 

as follows: 

212.7002–1 Contracts under the program. 

(a) * * * 

(2) Is a follow-on contract for the 

production of an item or process begun 

as a prototype project under an other 

transaction agreement or as a research 

project carried out in accordance with 

10 U.S.C. 2371; 

* * * * * 

(4) Is awarded on or before September 

30, 2010; and 

* * * * * 

■ 3. Section 212.7002–2 is amended by 

revising paragraphs (a)(1) and (3) to read 

as follows: 

212.7002–2 Subcontracts under the 

program. 

(a) * * * 

(1) Is for the production of an item or 

process begun as a prototype project 

under an other transaction agreement or 

as a research project carried out in 

accordance with 10 U.S.C. 2371; 

* * * * * 

(3) Is awarded on or before September 

30, 2010; 

* * * * * 

[FR Doc. E9–667 Filed 1–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 216 

RIN 0750–AG14 

Defense Federal Acquisition 

Regulation Supplement; Delegation of 

Authority for Single Award Task or 

Delivery Order Contracts (DFARS Case 

2008–D017) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to address Federal Acquisition 

Regulation provisions that permit the 

award of a single source task or delivery 

order contract exceeding $100 million, 

if the head of the agency determines it 

is necessary in the public interest. The 

DFARS rule specifies that the authority 

to make such a determination may not 

be delegated below the level of the 

senior procurement executive. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Benavides, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–1302; 

facsimile 703–602–7887. Please cite 

DFARS Case 2008–D017. 

SUPPLEMENTARY INFORMATION: 

A. Background 

An interim rule amending the Federal 

Acquisition Regulation (FAR) was 

published at 73 FR 54008 on September 

17, 2008, to implement Section 843 of 

the National Defense Authorization Act 

for Fiscal Year 2008 (Pub. L. 110–181). 

Section 843 prohibits the award of a 

task or delivery order contract in an 

amount exceeding $100 million to a 

single source unless the head of the 

agency determines that: the task or 

delivery orders expected under the 

contract are so integrally related that 

only a single source can reasonably 

perform the work; the contract provides 

only for firm-fixed-price task or delivery 

orders; only one source is qualified and 

capable of performing the work at a 

reasonable price to the Government; or 

it is necessary in the public interest to 

award the contract to a single source 

due to exceptional circumstances. With 

regard to the delegation of authority 

provision at FAR 1.108(b), this DFARS 

rule specifies that the head of the 

agency may not delegate the authority to 

make a single source public interest 

determination below the level of the 

senior procurement executive. The rule 

also requires that a copy of any 

determination authorizing the award of 

a single source task or delivery order 

contract be submitted to the Deputy 

Director, Defense Procurement (Contract 

Policy and International Contracting). 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

This rule will not have a significant 

cost or administrative impact on 

contractors or offerors, or a significant 

effect beyond the internal operating 

procedures of DoD. Therefore, 

publication for public comment under 

41 U.S.C. 418b is not required. 

However, DoD will consider comments 

from small entities concerning the 

affected DFARS subpart in accordance 

with 5 U.S.C. 610. Such comments 

should cite DFARS Case 2008–D017. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Part 216 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 216 is 

amended as follows: 

PART 216—TYPES OF CONTRACTS 

■ 1. The authority citation for 48 CFR 

part 216 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 216.504 is added to read as 

follows: 

216.504 Indefinite-quantity contracts. 

(c)(1)(ii)(D) Limitation on single 

award contracts. 

mstockstill on PROD1PC66 with RULES