Federal Register / Vol. 75, No. 88 / Friday, May 7, 2010 / Proposed Rules 25165 

10. Amend section 252.227–7019 by 

revising the clause date; redesignating 

paragraphs (f) through (i) as (g) through 

(j) respectively; adding new paragraph 

(f); and revising newly redesignated 

paragraphs (g)(5), (h)(1), and (h)(3) to 

read as follows: 

Validation of Asserted Restrictions— 

Computer Software 

* * * * * 

VALIDATION OF ASSERTED 

RESTRICTIONS—COMPUTER SOFTWARE 

(DATE) 

* * * * * 

(f) Major systems. When the Contracting 

Officer challenges an asserted restriction 

regarding noncommercial computer software 

for a major system or a subsystem or 

component thereof on the basis that the 

computer software was not developed 

exclusively at private expense, the 

Contracting Officer shall sustain the 

challenge unless information provided by the 

Contractor or subcontractor demonstrates 

that the computer software was developed 

exclusively at private expense. 

(g) * * * 

(5) If the Contractor fails to respond to the 

Contracting Officer’s request for information 

or additional information under paragraph 

(g)(1) of this clause, the Contracting Officer 

shall issue a final decision, in accordance 

with paragraph (f) of this clause and the 

Disputes clause of this contract, pertaining to 

the validity of the asserted restriction. 

* * * * * 

(h) * * * 

(1) The Government agrees that, 

notwithstanding a Contracting Officer’s final 

decision denying the validity of an asserted 

restriction and except as provided in 

paragraph (h)(3) of this clause, it will honor 

the asserted restriction— 

* * * * * 

(3) The agency head, on a nondelegable 

basis, may determine that urgent or 

compelling circumstances do not permit 

awaiting the filing of suit in an appropriate 

court, or the rendering of a decision by a 

court of competent jurisdiction or Board of 

Contract Appeals. In that event, the agency 

head will notify the Contractor of the urgent 

or compelling circumstances. 

Notwithstanding paragraph (h)(1) of this 

clause, the Contractor agrees that the agency 

may use, modify, reproduce, release, 

perform, display, or disclose computer 

software marked with government purpose 

legends for any purpose, and authorize others 

to do so; or restricted or special license rights 

for government purposes only. The 

Government agrees not to release or disclose 

such software unless, prior to release or 

disclosure, the intended recipient is subject 

to the use and non-disclosure agreement at 

227.7103–7 of the Defense Federal 

Acquisition Regulation Supplement 

(DFARS), or is a Government contractor 

receiving access to the software for 

performance of a Government contract that 

contains the clause at DFARS 252.227–7025, 

Limitations on the Use or Disclosure of 

Government-Furnished Information Marked 

with Restrictive Legends. The agency head’s 

determination may be made at any time after 

the date of the Contracting Officer’s final 

decision and shall not affect the Contractor’s 

right to damages against the United States, or 

other relief provided by law, if its asserted 

restrictions are ultimately upheld. 

* * * * * 

11. Amend section 252.227–7037 by 

revising the clause date and revising 

paragraphs (b), (c), (f), and (l) to read as 

follows: 

* * * * * 

252.227–7037 Validation of Restrictive 

Markings on Technical Data. 

* * * * * 

VALIDATION OF RESTRICTIVE 

MARKINGS ON TECHNICAL DATA (DATE) 

* * * * * 

(b) Presumption regarding development 

exclusively at private expense. 

(1) Commercial items. For commercially 

available off-the-shelf items (defined at 41 

U.S.C. Section 431(c)) in all cases, and for all 

other commercial items except as provided in 

paragraph (b)(2) of this clause, the 

Contracting Officer shall presume that a 

Contractor’s asserted use or release 

restrictions are justified on the basis that the 

item, component, or process was developed 

exclusively at private expense. The 

Contracting Officer shall not challenge such 

assertions unless information provided by 

the Contracting Officer demonstrates that the 

item, component, or process was not 

developed exclusively at private expense. 

(2) Major systems. The presumption of 

development exclusively at private expense 

does not apply to major systems or 

subsystems or components thereof, except for 

commercially available off-the-shelf items 

(which are governed by paragraph (b)(1) of 

this clause). When the Contracting Officer 

challenges an asserted restriction regarding 

technical data for a major system or a 

subsystem or component thereof on the basis 

that the item, component, or process was not 

developed exclusively at private expense, the 

Contracting Officer shall sustain the 

challenge unless information provided by the 

Contractor or subcontractor demonstrates 

that the item, component, or process was 

developed exclusively at private expense. 

(c) Justification. The Contractor or 

subcontractor at any tier is responsible for 

maintaining records sufficient to justify the 

validity of its markings that impose 

restrictions on the Government and others to 

use, duplicate, or disclose technical data 

delivered or required to be delivered under 

the contract or subcontract. Except as 

provided in paragraph (b) of this clause, the 

Contractor or subcontractor shall be prepared 

to furnish to the Contracting Officer a written 

justification for such restrictive markings in 

response to a challenge under paragraph (e) 

of this clause. 

* * * * * 

(f) Final decision when Contractor or 

subcontractor fails to respond. Upon a failure 

of a Contractor or subcontractor to submit 

any response to the challenge notice, the 

Contracting Officer shall issue a final 

decision to the Contractor or subcontractor in 

accordance with paragraph (b) of this clause 

and the Disputes clause of this contract 

pertaining to the validity of the asserted 

restriction. This final decision shall be issued 

as soon as possible after the expiration of the 

time period of paragraph (e)(1)(ii) or (e)(2) of 

this clause. Following issuance of the final 

decision, the Contracting Officer shall 

comply with the procedures in paragraphs 

(g)(2)(ii) through (iv) of this clause. 

* * * * * 

(l) Flowdown. The Contractor or 

subcontractor agrees to insert this clause in 

contractual instruments with its 

subcontractors or suppliers at any tier 

requiring the delivery of technical data. 

(End of clause) 

[FR Doc. 2010–10764 Filed 5–6–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

[DFARS Case 2008–D027] 

48 CFR Parts 215, 234, 242, and 252 

Defense Federal Acquisition 

Regulation Supplement; Cost and 

Software Data Reporting System 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD proposes to amend the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to set forth DoD 

Cost and Software Data Reporting 

system requirements for major defense 

acquisition programs and major 

automated information system 

programs. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before July 

6, 2010, to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D027, 

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 2008–D027 in the subject 

line of the message. 

• Fax: 703–602–0350. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Mary 

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

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
25166 Federal Register / Vol. 75, No. 88 / Friday, May 7, 2010 / Proposed Rules 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Mary Overstreet, 703–602–0311. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This rule proposes to amend the 

DFARS to set forth the DoD requirement 

for offerors to: 

• Describe the standard Cost and 

Software Data Reporting (CSDR) process 

offerors intend to use to satisfy the 

requirements of the CSDR Manual, DoD 

5000.04–M–1, and the Governmentapproved contract CSDR plan, DD Form 

2794, and the related Resource 

Distribution Table (RDT), in proposals 

in response to solicitations for Major 

Defense Acquisition Programs and 

Major Automated Information System 

programs; 

• Provide comments on the adequacy 

of the CSDR contract plan, and the 

related Resource Distribution Table 

contained in the solicitation; and, 

• Submit with their pricing proposal: 

the DD Form 1921, Cost Data Summary 

Report; DD Form 1921–1, Functional 

Cost-Hour Report; and, DD Form 1921– 

2, Progress Curve Report. 

During contract performance, the 

contractor will be required to: 

• Utilize a documented standard Cost 

and Software Data Reporting (CSDR) 

process that satisfies the guidelines 

contained in the CSDR Manual DoD 

5000.04–M–1; 

• Use management procedures that 

provide for generation of timely and 

reliable information for the Contractor 

Cost Data Reports, and Software 

Resources Data Reports; 

• Use the Government-approved 

contract CSDR plan, DD Form 2794, 

Cost and Software Data Reporting Plan 

with the related Resource Distribution 

Table, and DD Form 1921–3, Contractor 

Business Data Report, as the basis for 

reporting; and 

• Require subcontractors, or 

subcontracted effort if subcontractors 

have not been selected, to comply with 

the Cost and Software Data Reporting 

requirements. 

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 

is not a major rule. 

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 set forth 

Cost and Software Data Reporting 

System reporting requirements that are 

essential for the DoD to estimate the cost 

of current and future weapon systems. 

The reported data will also be very 

useful in performing contract price 

analysis, comparing prices of similar 

systems, and for capturing contractorprovided cost estimates in standard 

formats to facilitate comparison across 

several contractors. At this time, DoD is 

unable to estimate the number of small 

entities to which this rule will apply. 

DoD invites comments from small 

businesses 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 

U.S.C. 601 (DFARS Case 2008–D027) in 

correspondence. 

C. Paperwork Reduction Act 

The information collection 

requirements under this proposed rule 

were previously approved by the Office 

of Management and Budget, under 

Clearance Number 0704–0188. The 

requirements of this proposed rule are 

not expected to significantly change the 

burden hours approved under Clearance 

Number 0704–0188. 

List of Subjects in 48 CFR Parts 215, 

234, 242, and 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR parts 215, 234, 242, and 252 as 

follows: 

1. The authority citation for 48 CFR 

parts 215, 234, 242, and 252 continues 

to read as follows: 

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

chapter 1. 

PART 215—CONTRACTING BY 

NEGOTIATION 

215.403–5 [Removed] 

2. Remove section 215.403–5. 

PART 234—MAJOR SYSTEM 

ACQUSITION 

3. Add subpart 234.71 to read as 

follows: 

Subpart 234.71—Cost and Software Data 

Reporting 

Sec. 

234.7100 Policy. 

234.7101 Solicitation provision and 

contract clause. 

Subpart 234.71—Cost and Software 

Data Reporting 

234.7100 Policy. 

(a) The Cost and Software Data 

Reporting (CSDR) requirement is 

mandatory for major defense acquisition 

programs (as defined in 10 U.S.C. 2430), 

and major automated information 

system programs (as defined in 10 

U.S.C. 2445a) as specified in DoDI 

5000.02, Operation of the Defense 

Acquisition System and the DoD 

5000.04–M–1, CSDR Manual. The CSDR 

system is applied in accordance with 

the reporting requirements established 

in DoDI 5000.02. 

(b) Prior to contract award, 

Contracting Officers shall consult with 

the Defense Cost and Resource Center to 

determine that the offeror selected for 

award has proposed a standard Cost and 

Software Data Reporting (CSDR) system, 

as described in the offeror’s proposal in 

response to the provision at 252.234– 

70XX, that is in compliance with DoDI 

5000.02, Operation of the Defense 

Acquisition System, and the DoD 

5000.04–M–1, CSDR Manual. 

(c) The Defense Cost and Resource 

Center contact information is located at 

PGI 234.7100. 

234.7101 Solicitation provision and 

contract clause. 

(a) Use the provision at 252.234– 

70XX, Notice of Cost and Software Data 

Reporting System, in all solicitations for 

major defense acquisition programs and 

major automated information system 

programs that exceed $50 million. The 

clause may also be used on selected 

contracts below $50 million, but greater 

than $20 million as determined by the 

DoD program manager with the 

approval of the Defense Cost and 

Resource Center (see PGI 234.7100). 

(b) Use the clause at 252.234–70YY, 

Cost and Software Data Reporting 

(CSDR), in all solicitations and contracts 

for major defense acquisition programs 

and major automated information 

system programs that exceed $20 

million. The clause may also be used for 

the CSDR Software Resources Data 

Reporting requirement on selected 

contracts below $20 million as 

determined by the DoD program 

manager with the approval of the 

Defense Cost and Resource Center (see 

PGI 234.7100). 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 88 / Friday, May 7, 2010 / Proposed Rules 25167 

PART 242—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

4. Revise section 242.503–2 to read as 

follows: 

242.503–2 Postaward conference 

procedure. 

(a) DD Form 1484, Post-Award 

Conference Record, may be used in 

conducting the conference and in 

preparing the conference report. 

(b) For contracts that include the 

clause at 252.234–70YY, postaward 

conferences shall include a discussion 

of the Contractor’s standard Cost and 

Software Data Reporting (CSDR) process 

that satisfies the guidelines contained in 

the CSDR Manual DoD 5000.04–M–1 

and the requirements in the Government 

approved contract CSDR plan, DD Form 

2794, Cost and Software Data Reporting 

Plan and related Resource Distribution 

Table, and DD Form 1921–3, Contractor 

Business Data Report. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

5. Add section 252.234–70XX to read 

as follows: 

252.234 70XX Notice of Cost and Software 

Data Reporting System. 

As prescribed in 234.7101(a), use the 

following provision: 

NOTICE OF COST AND SOFTWARE DATA 

REPORTING SYSTEM (DATE) 

(a) The offeror shall— 

(1) Describe the standard Cost and 

Software Data Reporting (CSDR) process that 

it intends to use to satisfy the requirements 

of the CSDR Manual, DoD 5000.04–M–1, and 

the Government-approved contract CSDR 

plan, DD Form 2794 and related Resource 

Distribution Table contained in the 

solicitation. For Contractor Cost and Data 

Reporting (CCDR) application, the 

description will demonstrate how reports are 

based, to the maximum extent possible, upon 

actual cost transactions and not cost 

allocations. The description will also show 

how the data from the offeror’s accounting 

system will be mapped into the standard 

reporting categories required in the 

Contractor CCDR data item descriptions. The 

document shall also describe how the offeror 

segregates recurring and nonrecurring costs; 

(2) Provide comments on the adequacy of 

the CSDR contract plan and related Resource 

Distribution Table contained in the 

solicitation; and 

(3) Submit the DD Form 1921, Cost Data 

Summary Report, DD Form 1921–1, 

Functional Cost-Hour Report, and DD Form 

1921–2, Progress Curve Report, with its 

pricing proposal. 

(b) The offeror shall identify the 

subcontractors or the subcontracted effort, if 

the subcontractors have not been selected, to 

whom the CSDR requirements will apply. 

This will be accomplished by providing 

comments on the Resource Distribution Table 

contained in the solicitation. The offeror 

shall be responsible for ensuring the selected 

subcontractors comply with the requirements 

of the CSDR System. The offeror shall also be 

responsible for notifying the Government 

prior to changes in subcontractor or planned 

subcontract circumstances affecting CSDR 

compliance. 

(End of provision) 

6. Add section 252.234–70YY to read 

as follows: 

252.234 70YY Cost and Software Data 

Reporting System. 

As prescribed in 234.7101(b), use the 

following clause: 

COST AND SOFTWARE DATA REPORTING 

SYSTEM (DATE) 

(a) In the performance of this contract, the 

Contractor shall use— 

(1) A documented standard Cost and 

Software Data Reporting (CSDR) process that 

satisfies the guidelines contained in the 

CSDR Manual DoD 5000.04–M–1; 

(2) Management procedures that provide 

for generation of timely and reliable 

information for the Contractor Cost Data 

Reports (CCDRs) and Software Resources 

Data Reports (SRDRs) required by the CCDR 

and SRDR data items of the contract. These 

procedures will also maximize use of actual 

cost transactions rather than cost allocations; 

and 

(3) The Government-approved contract 

CSDR plan, DD Form 2794, Cost and 

Software Data Reporting Plan and related 

Resource Distribution Table, and DD Form 

1921–3, Contractor Business Data Report, as 

the basis for reporting in accordance with the 

required CSDR data item descriptions (DIDs). 

(b) The Contractor shall require the 

following subcontractors to comply with the 

CSDR requirements: 

(Contracting Officer to insert names of 

subcontractors (or subcontracted effort if 

subcontractors have not been selected) 

designated for application of the CSDR 

requirement of the clause.) 

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

(End of clause) 

[FR Doc. 2010–10762 Filed 5–6–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

[DFARS Case 2006–D029] 

48 CFR Part 225 

RIN 0750–AG57 

Defense Federal Acquisition 

Regulation Supplement; Department of 

Defense (DoD); Restriction on Ball and 

Roller Bearings 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

revise the domestic source restriction on 

acquisition of ball and roller bearings. 

The current DFARS restriction on ball 

and roller bearings requires that the 

bearings and the main bearing 

components be manufactured in the 

U.S. or Canada. This requirement was 

based on the restriction at 10 U.S.C. 

2534(a)(5), which expired on October 1, 

2005. The proposed revision interprets 

the annual defense appropriations act 

domestic source restriction on 

acquisition of ball and roller bearings in 

a manner similar to the domestic source 

restriction of the Buy American Act. 

DATES: Comments on the proposed rule 

should be submitted to the address 

shown below on or before July 6, 2010, 

to be considered in the formulation of 

the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2006–D029, 

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 2006–D029 in the subject 

line of the message. 

• Fax: 703–602–0350. 

• Mail: Defense Acquisition 

Regulations Council, Attn: Ms. Amy 

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

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

All comments received will be posted 

to http://emissary.acq.osd.mil/dar/ 

dfars.nsf. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, 703–602–0328. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The current DFARS restriction on ball 

and roller bearings (225.7009) 

implemented two statutory restrictions: 

10 U.S.C. 2534(a)(5) and annual 

appropriations act restrictions. 10 U.S.C. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS