13544 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations 

PART 227—PATENTS, DATA, AND 

COPYRIGHTS 

227.7103–3 [Amended] 

■ 10. Section 227.7103–3 is amended in 

paragraph (c) by removing ‘‘the clause at 

252.277–7013’’ and adding ‘‘the clause 

at 252.227–7013’’ in its place. 

PART 242—CONTRACTOR 

INSURANCE/PENSION REVIEW 

■ 11. Section 242.302 paragraph (a)(S– 

72) is revised to read as follows: 

242.302 Contract administration functions. 

(a) * * * 

(S–72) Ensure implementation of the 

Synchronized Predeployment and 

Operational Tracker (SPOT) by the 

contractor and maintain surveillance 

over contractor compliance with SPOT 

business rules available at the Web site 

provided at PGI 225.7402–5(a)(iv) for 

contracts incorporating the clause at 

252.225–7040, Contractor Personnel 

Authorized to Accompany U.S. Armed 

Forces Deployed Outside the United 

States. See PGI 242.302(a)(S–72) for 

guidance on assessing contractor’s 

implementation of SPOT. 

* * * * * 

■ 12. Section 242.7302 is revised to read 

as follows: 

242.7302 Requirements. 

(a)(1) An in-depth CIPR as described 

at DFARS 242.7301(a)(1) shall be 

conducted only when— 

(i) A contractor has $50 million of 

qualifying sales to the Government 

during the contractor’s preceding fiscal 

year; and 

(ii) The ACO, with advice from DCMA 

insurance/pension specialists and 

DCAA auditors, determines a CIPR is 

needed based on a risk assessment of 

the contractor’s past experience and 

current vulnerability. 

(2) Qualifying sales are sales for 

which certified cost or pricing data were 

required under 10 U.S.C. 2306a, as 

implemented in FAR 15.403, or that are 

contracts priced on other than a firmfixed-price or fixed-price with economic 

price adjustment basis. Sales include 

prime contracts, subcontracts, and 

modifications to such contracts and 

subcontracts. 

(b) A special CIPR that concentrates 

on specific areas of a contractor’s 

insurance programs, pension plans, or 

other deferred compensation plans shall 

be performed for a contractor 

(including, but not limited to, a 

contractor meeting the requirements in 

paragraph (a) of this section) when any 

of the following circumstances exists, 

but only if the circumstance(s) may 

result in a material impact on 

Government contract costs: 

(1) Information or data reveals a 

deficiency in the contractor’s insurance/ 

pension program. 

(2) The contractor proposes or 

implements changes in its insurance, 

pension, or deferred compensation 

plans. 

(3) The contractor is involved in a 

merger, acquisition, or divestiture. 

(4) The Government needs to follow 

up on contractor implementation of 

prior CIPR recommendations. 

(c) The DCAA auditor shall use 

relevant findings and recommendations 

of previously performed CIPRs in 

determining the scope of any audits of 

insurance and pension costs. 

(d) When a Government organization 

believes that a review of the contractor’s 

insurance/pension program should be 

performed, that organization should 

provide a recommendation for a review 

to the ACO. If the ACO concurs, the 

review should be performed as part of 

an ACO-initiated special CIPR or as part 

of a CIPR already scheduled for the near 

future. 

PART 245—GOVERNMENT PROPERTY 

245.103–72 [Amended] 

■ 13. Section 245.103–72 is amended by 

removing ‘‘PGI 245–103–72’’ and adding 

‘‘PGI 245.103–72’’ in its place. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.204–7004 [Amended] 

■ 14. Section 252.204–7004 is 

amended— 

■ (a) By removing the clause date ‘‘(SEP 

2007)’’ and adding ‘‘(FEB 2013)’’ in its 

place; 

■ (b) In the introductory text by 

removing ‘‘As prescribed in 204.1104’’ 

and adding ‘‘As prescribed in 204.1105’’ 

in its place, and removing the word 

‘‘clause’’ and adding the word 

‘‘provision’’ in its place. 

252.211–7007 [Amended] 

■ 15. Section 252.211–7007 is amended 

as follows: 

■ a. In paragraph (a), in the definition of 

‘‘supply condition code’’ by removing 

the link ‘‘http://www.dtic.mil/whs/

directives/corres/pdf/400025m.pdf’’ and 

adding the link ‘‘http://www2.dla.mil/j6/dlmso/elibrary/manuals/dlm/dlm_

pubs.asp’’ in its place; 

■ b. In paragraph (d)(6) by removing the 

link ‘‘http://www.dtic.mil/whs/

directives/corres/pdf/400025m.pdf’’ and 

adding the link ‘‘http://www2.dla.mil/j6/dlmso/elibrary/manuals/dlm/dlm_

pubs.asp’’ in its place; and 

■ c. In paragraph (g)(1) by removing the 

link ‘‘https:///bpn.gov/iuid’’ and adding 

the link ‘‘https://iuid.logistics

informationservice.dla.mil/’’ in its 

place. 

252.212–7001 [Amended] 

■ 16. Section 252.212–7001 is 

amended— 

■ a. In paragraph (b)(2) by removing the 

clause date ‘‘(APR 2012)’’ and adding 

‘‘(DEC 2012)’’ in its place; 

■ b. In paragraph (b)(4) by removing the 

clause date ‘‘(JUN 2012)’’ and adding 

‘‘(AUG 2012)’’ in its place; and 

■ c. In paragraph (b)(26) by removing 

the clause date ‘‘(MAR 1998)’’ and 

adding ‘‘(DEC 2012)’’ in its place. 

252.215–7000 [Amended] 

■ 17. Section 252.215–7000 is 

amended— 

■ a. In the introductory paragraph by 

removing ‘‘use the followiclause’’ and 

adding ‘‘use the following clause’’ in its 

place, and 

■ b. By removing ‘‘Subcontractor Cost or 

Pricing Data’’ and adding 

‘‘Subcontractor Certified Cost or Pricing 

Data’’ in its place. 

[FR Doc. 2013–04354 Filed 2–27–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 215, 225, and 252 

RIN 0750–AH73 

Defense Federal Acquisition 

Regulation Supplement: Acquisition of 

Tents and Other Temporary Structures 

(DFARS Case 2012–D015) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has adopted as final, 

with changes, an interim rule amending 

the DFARS to implement sections of the 

National Defense Authorization Act for 

Fiscal Year 2012 that address the 

acquisition of tents and other temporary 

structures. 

DATES: Effective February 28, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Fernell Warren, telephone 571–372– 

6089. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published an interim rule in the 

Federal Register (77 FR 38734) on June 


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Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations 13545 

29, 2012, to implement sections 368 and 

821 of the National Defense 

Authorization Act for Fiscal Year 2012 

(Pub. L. 112–81). Section 368 requires 

award of contracts that provide the best 

value, when acquiring tents and other 

temporary structures, regardless of 

whether purchased by DoD or by 

another agency on behalf of DoD. 

Section 821 amends 10 U.S.C. 2533a 

(the ‘‘Berry Amendment’’) to extend the 

restriction requiring acquisition of 

domestic tents to include the structural 

components of tents, applicable to 

acquisitions that exceed the simplified 

acquisition threshold. 

No respondents submitted comments 

in response to the interim rule. 

II. Discussion 

Although no written public comments 

were received, DoD has amended the 

final rule as follows in response to 

verbal questions, which indicated 

possible misinterpretation of the interim 

rule. 

A. Tents and Structural Components of 

Tents 

Question: Does the term ‘‘structural 

components’’ apply just to tents, or also 

to tarpaulins and covers? 

Response: The vertical listing of the 

items at 225.7002–1(a)(3) and 252.225– 

7012(b)(3) ensures clarity that the 

phrase ‘‘structural components’’ only 

applies to tents and not also to 

tarpaulins and covers. 

B. Best Value When Acquiring Tents 

and Other Temporary Structures 

Question: Does the Berry Amendment 

now apply to temporary structures? 

Response: The interim rule addressed 

at DFARS 225.7002–1(a)(3)(i) the 

requirement to award contracts that 

provide best value, when acquiring tents 

and other temporary structures. DFARS 

225.7002–1 implements the domestic 

source restrictions of the Berry 

Amendment (10 U.S.C. 2533a). 

However, temporary structures are not 

covered under the Berry Amendment. 

Therefore, this requirement relating to 

best value has been moved to DFARS 

215.101, supplementing FAR 15.101, 

Best value continuum. This will remove 

any implication that temporary 

structures are covered by the Berry 

Amendment. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. The Office of Information 

and Regulatory Affairs has determined 

that this is not a significant regulatory 

action and, therefore, was not subject to 

review under section 6(b) of E.O. 12866, 

Regulatory Planning and Review, dated 

September 30, 1993. This rule is not a 

major rule under 5 U.S.C. 804. 

IV. Regulatory Flexibility Act 

DoD does not expect this final 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. 

However, a final regulatory flexibility 

analysis has been prepared and is 

summarized as follows: 

The objectives of this final rule are 

to— 

• Require that contracts for the 

acquisition of tents and other temporary 

structures provide best value, regardless 

of whether purchased by DoD or by 

another agency on behalf of DoD; and 

• Extend the domestic source 

restriction of 10 U.S.C. 2533a (the 

‘‘Berry Amendment’’) to cover the 

structural components of tents, in order 

to promote the use of domestic materials 

and enhance growth of the United States 

economy. 

The legal basis for this final rule is 

sections 368 and 821 of the National 

Defense Authorization Act for Fiscal 

Year 2012 (Pub. L. 112–81). The 

requirement to award contracts that 

provide best value to the Government 

does not have any impact on small 

business entities, because that is already 

a general requirement for all 

acquisitions. 

The domestic source restriction on the 

structural components of tents does not 

apply below the simplified acquisition 

threshold. This restriction may affect 

approximately 40 or fewer small 

business concerns at the prime contract 

level. Review of the Fiscal Year 2011 

data on acquisition of items with 

product or service code 8340 (tents or 

tarpaulins) identified 49 actions with 

small business concerns (contracts or 

orders), estimated value of $48.6 

million, of which about 10 percent 

appeared to be for other than tents (e.g., 

prefabricated metal buildings and 

components, metal household 

furnishings, or electrical equipment). 

The Federal Procurement Data System 

does not provide data on components, 

so it is not known the extent to which 

the providers of tents currently utilize 

domestic or foreign structural 

components. An exception may be 

granted if a component is domestically 

nonavailable. However, this rule 

promotes the use of domestic 

components, and should, therefore, be 

favorable to small entities that provide 

domestic structural components of 

tents. The requirements of the rule for 

use of domestic components will not 

apply below the simplified acquisition 

threshold. 

This rule does not impose any 

reporting or recordkeeping 

requirements. The rule does not 

duplicate, overlap, or conflict with any 

other Federal rules. 

DoD did not identify any significant 

alternatives that would accomplish the 

stated objectives of the statute. The rule 

specifically implements the statutory 

requirement. 

V. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 215, 

225, and 252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Accordingly, the interim rule 

amending 48 CFR parts 215, 225, and 

252 which was published at 77 FR 

38734 on June 29, 2012, is adopted as 

a final rule with the following changes: 

■ 1. The authority citation for 48 CFR 

parts 215, 225, and 252 continues to 

read as follows: 

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

chapter 1. 

PART 215—CONTRACTING BY 

NEGOTIATION 

■ 2. Subpart 215.1 is added to read as 

follows: 

Subpart 215.1—Source Selection 

Processes and Techniques 

Sec. 

225.101 Best value continuum. 

215.101–70 Best value when acquiring tents 

or other temporary structures. 

215.101 Best value continuum. 

215.101–70. Best value when acquiring 

tents or other temporary structures. 

(a) In accordance with section 368 of 

the National Defense Authorization Act 

for Fiscal Year 2012 (Pub. L. 112–81), 

when acquiring tents or other temporary 


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13546 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations 

structures for use by the Armed Forces, 

the contracting officer shall award 

contracts that provide the best value. 

Temporary structures covered by this 

paragraph are nonpermanent buildings, 

including tactical shelters, 

nonpermanent modular or prefabricated buildings, or portable or 

relocatable buildings, such as trailers or 

equipment configured for occupancy 

(see also 246.270–2). Determination of 

best value includes consideration of the 

total life-cycle costs of such tents or 

structures, including the costs 

associated with any equipment, fuel, or 

electricity needed to heat, cool, or light 

such tents or structures (see FAR 

7.105(a)(3)(i) and PGI 207.105(a)(3)(i)). 

(b) The requirements of this section 

apply to any agency or department that 

acquires tents or other temporary 

structures on behalf of DoD (see FAR 

17.503(d)(2)). 

PART 225—FOREIGN ACQUISITION 

■ 3. Section 225.7002–1 is amended by 

revising paragraph (a)(3) to read as 

follows: 

225.7002–1 Restrictions. 

(a) * * * 

(3)(i) Tents and the structural 

components of tents; 

(ii) Tarpaulins; or 

(iii) Covers. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.212–7001 [Amended] 

■ 4. Section 252.212–7001 is amended 

by removing the clause date ‘‘(DEC 

2012)’’ and adding ‘‘(FEB 2013)’’ in its 

place, and in paragraph (b)(9) removing 

‘‘(DEC 2012)’’ and adding ‘‘(FEB 2013)’’ 

in its place. 

■ 5. Section 252.225–7012 is amended 

by removing the clause date ‘‘(DEC 

2012)’’ and adding ‘‘(FEB 2013)’’ in its 

place, and by revising paragraph (b)(3) 

to read as follows: 

252.225–7012 Preference for certain 

domestic commodities. 

* * * * * 

(b) * * * 

(3)(i) Tents and structural components 

of tents; 

(ii) Tarpaulins; or 

(iii) Covers. 

* * * * * 

[FR Doc. 2013–04355 Filed 2–27–13; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 219 and 252 

[DFARS Case 2009–D002] 

RIN 0750–AG40 

Defense Federal Acquisition 

Regulation Supplement; Electronic 

Subcontracting Reporting System 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has adopted as final, 

with changes, an interim rule, amending 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

conform to the FAR regarding policy 

and procedures related to the Electronic 

Subcontracting Reporting System. 

DATES: Effective February 28, 2013. 

FOR FURTHER INFORMATION CONTACT: Lee 

Renna, Defense Acquisition Regulations 

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

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Telephone 571–372–6095. 

SUPPLEMENTARY INFORMATION:

I. Background 

DoD published an interim rule in the 

Federal Register at 75 FR 65439 on 

October 25, 2010, to amend section 

219.708, clauses 252.212–7001, 

252.219–7003, and 252.219–7004, and 

sections I–105 and I–112 of Appendix I, 

to provide DoD-specific procedures and 

policies related to the Electronic 

Subcontracting Reporting System 

(eSRS). There were no comments 

received in response to the interim rule. 

Accordingly, the interim rule amending 

48 CFR parts 219, 252, and Appendix I, 

is adopted as a final rule with only 

minor technical changes at 219.708. 

II. Executive Order 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. The Office of Information 

and Regulatory Affairs has determined 

that this is not a significant regulatory 

action and, therefore, was not subject to 

review under section 6(b) of E.O. 12866, 

Regulatory Planning and Review, dated 

September 30, 1993. This rule is not a 

major rule under 5 U.S.C. 804. 

III. Regulatory Flexibility Act 

DoD certifies that this final rule will 

not 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 small businesses are not 

required to have subcontracting plans 

and, therefore, are not required to use 

eSRS to submit reports on their progress 

in achieving the goals in those plans. 

IV. Paperwork Reduction Act. 

This final rule does not contain any 

new information collection 

requirements that require the approval 

of the Office of Management and Budget 

under the Paperwork Reduction Act (44 

U.S.C. 35). This rule provides DoD 

instructions on how to submit reports 

that are already required by the FAR 

and are covered under Office of 

Management and Budget Clearance 

Numbers 9000–0006, Subcontracting 

Plans/Individual subcontract Report (SF 

294) and 9000–0007, Summary Contract 

Report. 

List of Subjects in 48 CFR Parts 219 and 

252 

Government procurement. 

Kortnee Stewart, 

Editor, Defense Acquisition Regulations 

System. 

Accordingly, the interim rule 

amending 48 CFR parts 219 and 252, 

which was published in the Federal 

Register at 75 FR 65439 on October 25, 

2010, is adopted a final with the 

following changes: 

PART 219—SMALL BUSINESS 

PROGRAMS 

■ 1. The authority citation for 48 CFR 

part 219 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 219.708 is amended by 

revising paragraph (b)(1) to read as 

follows: 

219.708 Contract clauses. 

(b)(1)(A) Except as provided in 

paragraph (b)(1)(B) of this section, use 

the clause at 252.219–7003, Small 

Business Subcontracting Plan (DoD 

Contracts)— 

(1) In solicitations and contracts that 

contain the clause at FAR 52.219–9, 

Small Business Subcontracting Plan. 

(2) With its Alternate I in contracts 

that use Alternate III of 52.219–9, Small 


srobinson on DSK4SPTVN1PROD with RULES