Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations 34269 

(b) A determination to use a 

contractor to perform lead system 

integrator functions in accordance with 

209.570–2(c)(2)— 

(1) Shall specify the reasons why it 

would not be practicable to carry out the 

acquisition without continuing to use a 

contractor to perform lead system 

integrator functions, including a 

discussion of alternatives, such as use of 

the DoD workforce or a system 

engineering and technical assistance 

contractor; 

(2) Shall include a plan for phasing 

out the use of contracted lead system 

integrator functions over the shortest 

period of time consistent with the 

interest of the national defense; and 

(3) Shall be provided to the 

Committees on Armed Services of the 

Senate and the House of Representatives 

at least 45 days before the award of a 

contract pursuant to the determination. 

PART 237—SERVICE CONTRACTING 

■ 4. Section 237.102–72 is added to read 

as follows: 

237.102–72 Contracts for management 

services. 

In accordance with Section 802 of the 

National Defense Authorization Act for 

Fiscal Year 2008 (Pub. L. 110–181), DoD 

may award a contract for the acquisition 

of services the primary purpose of 

which is to perform acquisition support 

functions with respect to the 

development or production of a major 

system, only if— 

(a) The contract prohibits the 

contractor from performing inherently 

governmental functions; 

(b) The DoD organization responsible 

for the development or production of 

the major system ensures that Federal 

employees are responsible for 

determining— 

(1) Courses of action to be taken in the 

best interest of the Government; and 

(2) Best technical performance for the 

warfighter; and 

(c) The contract requires that the 

prime contractor for the contract may 

not advise or recommend the award of 

a contract or subcontract for the 

development or production of the major 

system to an entity owned in whole or 

in part by the prime contractor. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 5. Section 252.209–7007 is amended 

by revising the clause date and 

paragraphs (a)(2), (a)(3), and (e) to read 

as follows: 

252.209–7007 Prohibited Financial 

Interests for Lead System Integrators. 

* * * * * 

PROHIBITED FINANCIAL INTERESTS FOR 

LEAD SYSTEM INTEGRATORS (JUL 2009) 

(a) * * * 

(2) Lead system integrator with system 

responsibility means a prime contractor for 

the development or production of a major 

system, if the prime contractor is not 

expected at the time of award to perform a 

substantial portion of the work on the system 

and the major subsystems. 

(3) Lead system integrator without system 

responsibility means a prime contractor 

under a contract for the procurement of 

services, the primary purpose of which is to 

perform acquisition functions closely 

associated with inherently governmental 

functions (see section 7.503(d) of the Federal 

Acquisition Regulation) with respect to the 

development or production of a major 

system. 

* * * * * 

(e) This clause implements the 

requirements of 10 U.S.C. 2410p, as 

added by Section 807 of the National 

Defense Authorization Act for Fiscal 

Year 2007 (Pub. L. 109–364), and 

Section 802 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). 

[FR Doc. E9–16676 Filed 7–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212 and 239 

RIN 0750–AG32 

Defense Federal Acquisition 

Regulation Supplement; Use of 

Commercial Software (DFARS Case 

2008–D044) 

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 803 of 

the National Defense Authorization Act 

for Fiscal Year 2009. Section 803 

requires DoD to identify and evaluate, at 

all stages of the acquisition process, 

opportunities for the use of commercial 

computer software and other nondevelopmental software. 

DATES: Effective Date: July 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian Thrash, Defense Acquisition 

Regulations System, 

OUSD(AT&L)DPAP(DARS), IMD 3D139, 

3062 Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–0310; 

facsimile 703–602–7887. Please cite 

DFARS Case 2008–D044. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 803 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417) requires DoD to 

ensure that contracting officials identify 

and evaluate, at all stages of the 

acquisition process (including concept 

refinement, concept decision, and 

technology development), opportunities 

for the use of commercial computer 

software and other non-developmental 

software. This final rule adds text at 

DFARS 212.212 to address the 

requirements of Section 803 of Public 

Law 110–117. In addition, the rule adds 

cross-references to existing DFARS 

policy regarding the acquisition of 

commercial software, software 

maintenance, and software 

documentation. 

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 subparts in accordance 

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

should cite DFARS Case 2008–D044. 

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 Parts 212 and 

239 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 212 and 239 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 212 and 239 continues to read as 

follows: 

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

Chapter 1. 


srobinson on DSKHWCL6B1PROD with RULES
34270 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Section 212.212 is revised to read 

as follows: 

212.212 Computer software. 

(1) Departments and agencies shall 

identify and evaluate, at all stages of the 

acquisition process (including concept 

refinement, concept decision, and 

technology development), opportunities 

for the use of commercial computer 

software and other non-developmental 

software in accordance with Section 803 

of the National Defense Authorization 

Act for Fiscal Year 2009 (Pub. L. 110– 

417). 

(2) See Subpart 208.74 when 

acquiring commercial software or 

software maintenance. See 227.7202 for 

policy on the acquisition of commercial 

computer software and commercial 

computer software documentation. 

PART 239—ACQUISITION OF 

INFORMATION TECHNOLOGY 

■ 3. Section 239.101 is amended by 

adding a second sentence to read as 

follows: 

239.101 Policy. 

* * * See 227.7202 for policy on the 

acquisition of commercial computer 

software and commercial computer 

software documentation. 

[FR Doc. E9–16659 Filed 7–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 217 

RIN 0750–AG24 

Defense Federal Acquisition 

Regulation Supplement; Limitation on 

Procurements on Behalf of DoD 

(DFARS Case 2008–D005) 

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 801 of 

the National Defense Authorization Act 

for Fiscal Year 2008. Section 801 

addresses internal controls for 

procurements made by non-DoD 

agencies on behalf of DoD. 

DATES: Effective date: July 15, 2009. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before September 14, 2009, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D005, 

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–D005 in the subject 

line of the message. 

• Fax: 703–602–7887. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. 

Cassandra Freeman, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. 

• 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. 

Cassandra Freeman, 703–602–8383. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule implements Section 

801 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). Section 801 places 

limitations on acquisitions made by 

non-DoD agencies on behalf of DoD. 

Such acquisitions exceeding the 

simplified acquisition threshold may be 

made only if the head of the non-DoD 

agency has certified that the non-DoD 

agency will comply with defense 

procurement requirements for the fiscal 

year. 

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., 

because the requirements of the rule are 

internal to the Government. 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–D005. 

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. 

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 801 of the 

National Defense Authorization Act for 

Fiscal Year 2008 (Pub. L. 110–181). 

Section 801 places limitations on 

acquisitions made by non-DoD agencies 

on behalf of DoD, and requires DoD to 

issue guidance on the appropriate use of 

interagency contracting. 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 217 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR part 217 is 

amended as follows: 

PART 217—SPECIAL CONTRACTING 

METHODS 

■ 1. The authority citation for 48 CFR 

part 217 continues to read as follows: 

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

Chapter 1. 

■ 2. Section 217.7800 is amended by 

revising paragraph (a) to read as follows: 

217.7800 Scope of subpart. 

* * * * * 

(a) Implements Section 854 of the 

National Defense Authorization Act for 

Fiscal Year 2005 (Pub. L. 108–375) and 

Section 801 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181); and 

* * * * * 

■ 3. Sections 217.7801 and 217.7802 are 

revised to read as follows: 

217.7801 Definitions. 

As used in this subpart— 

Acquisition official means— 

(1) A DoD contracting officer; or 

(2) Any other DoD official authorized 

to approve a direct acquisition or an 

assisted acquisition on behalf of DoD. 


srobinson on DSKHWCL6B1PROD with RULES