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###### Department of Defense

###### Defense Acquisition Regulations System 

          - 48 CFR Parts 215 and 252 
          - RIN 0750-AF40 

# 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 implement Section 819 of the National Defense Authorization Act for Fiscal Year 2006. Section 819 authorizes DoD to use an evaluation factor that considers whether an offeror intends to perform a contract using employees or individual subcontractors who are members of the Selected Reserve. 

# DATES:

*Effective Date:*                         October 20, 2008.                     

# 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 2006-D014. 

# SUPPLEMENTARY INFORMATION:

## A. Background 

This final rule implements Section 819 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). Section 819 authorizes DoD to use an evaluation factor that considers whether an offeror intends to perform a contract using employees or individual subcontractors who are members of the Selected Reserve, and requires offerors to submit documentation supporting any stated intent to use such employees or subcontractors. The rule contains a solicitation provision and a contract clause addressing the evaluation factor and the obligations of a contractor awarded a contract based on the evaluation factor. 

DoD published a proposed rule at 72 FR 51209 on September 6, 2007. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change. 

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 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 use of the evaluation factor is discretionary and is not expected to affect a significant number of acquisitions.                 

## C. Paperwork Reduction Act 

This final rule contains a new information collection requirement. The Office of Management and Budget has approved the information collection under Control Number 0704-0446. 

# List of Subjects in 48 CFR Parts 215 and 252

      - Government procurement

Michele P. Peterson 

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR Parts 215 and 252 are amended as follows: 

1. The authority citation for 48 CFR Parts 215 and 252 continues to read as follows: 

Authority:41 U.S.C. 421 and 48 CFR Chapter 1. 

# PART 215—CONTRACTING BY NEGOTIATION 

2. Sections 215.370 through 215.370-3 are added to read as follows: 

 215.370 

215.370-1

*Selected Reserve*, as used in this section, is defined in the provision at 252.215-7005, Evaluation Factor for Employing or Subcontracting with Members of the Selected Reserve.                         

215.370-2

In accordance with Section 819 of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163), the contracting officer may use an evaluation factor that considers whether an offeror intends to perform the contract using employees or individual subcontractors who are members of the Selected Reserve. See PGI 215.370-2 for guidance on use of this evaluation factor. 

215.370-3 

                            (a) Use the provision at 252.215-7005, Evaluation Factor for Employing or Subcontracting with Members of the                                   ( print page 62212)                                Selected Reserve, in solicitations that include an evaluation factor considering whether an offeror intends to perform the contract using employees or individual subcontractors who are members of the Selected Reserve.                         

(b) Use the clause at 252.215-7006, Use of Employees or Individual Subcontractors Who are Members of the Selected Reserve, in solicitations that include the provision at 252.215-7005. Include the clause in the resultant contract only if the contractor stated in its proposal that it intends to perform the contract using employees or individual subcontractors who are members of the Selected Reserve, and that statement was used as an evaluation factor in the award decision.

# PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 

3. Sections 252.215-7005 and 252.215-7006 are added to read as follows: 

252.215-7005

As prescribed in 215.370-3(a), use the following provision:

## Evaluation Factor for Employing or Subcontracting With Members of the Selected Reserve (Oct 2008) 

                                (a)                                 *Definition. Selected Reserve*, as used in this provision, has the meaning given that term in 10 U.S.C. 10143. Selected Reserve members normally attend regular drills throughout the year and are the group of Reserves most readily available to the President.                             

(b) This solicitation includes an evaluation factor that considers the offeror's intended use of employees, or individual subcontractors, who are members of the Selected Reserve. 

(c) If the offeror, in the performance of any contract resulting from this solicitation, intends to use employees or individual subcontractors who are members of the Selected Reserve, the offeror's proposal shall include documentation to support this intent. Such documentation may include, but is not limited to—

(1) Existing company documentation, such as payroll or personnel records, indicating the names of the Selected Reserve members who are currently employed by the company; or 

(2) A statement that one or more positions will be set aside to be filled by new hires of Selected Reserve members, along with verifying documentation. 

(End of provision)

252.215-7006

As prescribed in 215.370-3(b), use the following clause:

## Use of Employees or Individual Subcontractors Who Are Members of the Selected Reserve (Oct 2008) 

                                (a)                                 *Definition. Selected Reserve*, as used in this clause, has the meaning given that term in 10 U.S.C. 10143. Selected Reserve members normally attend regular drills throughout the year and are the group of Reserves most readily available to the President.                             

(b) If the Contractor stated in its offer that it intends to use members of the Selected Reserve in the performance of this contract—

(1) The Contractor shall use employees, or individual subcontractors, who are members of the Selected Reserve in the performance of the contract to the fullest extent consistent with efficient contract performance; and 

(2) The Government has the right to terminate the contract for default if the Contractor willfully or intentionally fails to use members of the Selected Reserve, as employees or individual subcontractors, in the performance of the contract. 

(End of clause) 

[FR Doc. E8-24480 Filed 10-17-08; 8:45 am] 

BILLING CODE 5001-08-P