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[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Rules and Regulations]
[Pages 62211-62212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24480]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 215 and 252

RIN 0750-AF40

Defense Federal Acquisition Regulation Supplement; Evaluation 
Factor for Use of Members of the Selected Reserve (DFARS Case 2006-
D014)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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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.

0
Therefore, 48 CFR Parts 215 and 252 are amended as follows:
0
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

0
2. Sections 215.370 through 215.370-3 are added to read as follows:

 215.370  Evaluation factor for employing or subcontracting with 
members of the Selected Reserve.

215.370-1   Definition.

    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   Evaluation factor.

    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  Solicitation provision and contract clause.

    (a) Use the provision at 252.215-7005, Evaluation Factor for 
Employing or Subcontracting with Members of the

[[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

0
3. Sections 252.215-7005 and 252.215-7006 are added to read as follows:

252.215-7005   Evaluation Factor for Employing or Subcontracting With 
Members of the Selected Reserve.

    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   Use of Employees or Individual Subcontractors Who Are 
Members of the Selected Reserve.

    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
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