34264 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations 

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

Chapter 1. 

PART 202—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Section 202.101 is amended by 

adding a definition of General public 

and non-governmental entities in 

alphabetical order to read as follows: 

202.101 Definitions. 

* * * * * 

General public and non-governmental 

entities, as used in the definition of 

commercial item at FAR 2.101, do not 

include the Federal Government or a 

State, local, or foreign government (Pub. 

L. 110–181, Section 815(b)). 

* * * * * 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 3. Section 212.207 is added to read as 

follows: 

212.207 Contract type. 

(b) In accordance with Section 805 of 

the National Defense Authorization Act 

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

use of time-and-materials and laborhour contracts for the acquisition of 

commercial items is authorized only for 

the following: 

(i) Services acquired for support of a 

commercial item. 

(ii) Emergency repair services. 

(iii) Any other commercial services 

only to the extent that the head of the 

agency concerned approves a written 

determination by the contracting officer 

that— 

(A) The services to be acquired are 

commercial; 

(B) If the services to be acquired are 

subject to FAR 15.403–1(c)(3)(ii), the 

offeror of the services has submitted 

sufficient information in accordance 

with that subsection; 

(C) Such services are commonly sold 

to the general public through use of 

time-and-materials or labor-hour 

contracts; and 

(D) The use of a time-and-materials or 

labor-hour contract type is in the best 

interest of the Government. 

PART 234—MAJOR SYSTEM 

ACQUISITION 

■ 4. Section 234.7002 is revised to read 

as follows: 

234.7002 Policy. 

(a) Major weapon systems. (1) A DoD 

major weapon system may be treated as 

a commercial item, or acquired under 

procedures established for the 

acquisition of commercial items, only 

if— 

(i) The Secretary of Defense 

determines that— 

(A) The major weapon system is a 

commercial item as defined in FAR 

2.101; and 

(B) Such treatment is necessary to 

meet national security objectives; 

(ii) The offeror has submitted 

sufficient information to evaluate, 

through price analysis, the 

reasonableness of the price for such a 

system; and 

(iii) The congressional defense 

committees are notified at least 30 days 

before such treatment or acquisition 

occurs. Follow the procedures at PGI 

234.7002. 

(2) The authority of the Secretary of 

Defense to make a determination under 

paragraph (a)(1) of this section may not 

be delegated below the level of the 

Deputy Secretary of Defense. 

(b) Subsystems. A subsystem of a 

major weapon system (other than a 

commercially available off-the-shelf 

item) may be treated as a commercial 

item and acquired under procedures 

established for the acquisition of 

commercial items only if— 

(1) The subsystem is intended for a 

major weapon system that is being 

acquired, or has been acquired, under 

procedures established for the 

acquisition of commercial items in 

accordance with paragraph (a) of this 

section; or 

(2) The contracting officer determines 

in writing that— 

(i) The subsystem is a commercial 

item; and 

(ii) The offeror has submitted 

sufficient information to evaluate, 

through price analysis, the 

reasonableness of the price for the 

subsystem. 

(c) Components and spare parts. (1) A 

component or spare part for a major 

weapon system (other than a 

commercially available off-the-shelf 

item) may be treated as a commercial 

item only if— 

(i) The component or spare part is 

intended for— 

(A) A major weapon system that is 

being acquired, or has been acquired, 

under procedures established for the 

acquisition of commercial items in 

accordance with paragraph (a) of this 

section; or 

(B) A subsystem of a major weapon 

system that is being acquired, or has 

been acquired, under procedures 

established for the acquisition of 

commercial items in accordance with 

paragraph (b) of this section; or 

(ii) The contracting officer determines 

in writing that— 

(A) The component or spare part is a 

commercial item; and 

(B) The offeror has submitted 

sufficient information to evaluate, 

through price analysis, the 

reasonableness of the price for the 

component or spare part. 

(2) This paragraph (c) shall apply only 

to components and spare parts that are 

acquired by DoD through a prime 

contract or a modification to a prime 

contract, or through a subcontract under 

a prime contract or modification to a 

prime contract on which the prime 

contractor adds no, or negligible, value. 

(d) Relevant information. To the 

extent necessary to make a 

determination under paragraph (a)(1)(ii), 

(b)(2), or (c)(1)(ii) of this section, the 

contracting officer may request the 

offeror to submit— 

(1) Prices paid for the same or similar 

commercial items under comparable 

terms and conditions by both 

Government and commercial customers; 

and 

(2) Other relevant information 

regarding the basis for price or cost, 

including information on labor costs, 

material costs, and overhead rates, if the 

contracting officer determines that the 

information described in paragraph 

(d)(1) of this section is not sufficient to 

determine price reasonableness. 

[FR Doc. E9–16674 Filed 7–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 204, 219, 225, and 252 

Defense Federal Acquisition 

Regulation Supplement; Technical 

Amendments 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is making technical 

amendments to the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to update references within the 

DFARS text. 

DATES: Effective Date: July 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Michele Peterson, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–0311; 

facsimile 703–602–7887. 

SUPPLEMENTARY INFORMATION: This final 

rule amends DFARS text as follows: 

• 204.7202–2, 219.708, 219.1204, and 

225.1101. Updates cross-references. 


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Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations 34265 

• 225.301–4. Adds a reference to a 

DoD Web site. 

• 252.225–7040. Updates a reference 

to a DoD publication. 

List of Subjects in 48 CFR Parts 204, 

219, 225, and 252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR Parts 204, 219, 225, 

and 252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

Parts 204, 219, 225, and 252 continues 

to read as follows: 

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

Chapter 1. 

PART 204—ADMINISTRATIVE 

MATTERS 

■ 2. Section 204.7202–2 is revised to 

read as follows: 

204.7202–2 DUNS numbers. 

Requirements for use of DUNS 

numbers are in FAR 4.605(b) and 

4.607(a). 

PART 219—SMALL BUSINESS 

PROGRAMS 

219.708 [Amended] 

■ 3. Section 219.708 is amended in 

paragraphs (b)(2) and (c)(1) by removing 

‘‘219.702(a)’’ and adding in its place 

‘‘219.702’’. 

219.1204 [Amended] 

■ 4. Section 219.1204 is amended in 

paragraph (c), in the last sentence, by 

removing ‘‘219.702(a)’’ and adding in its 

place ‘‘219.702’’. 

PART 225—FOREIGN ACQUISITION 

■ 5. Section 225.301–4 is amended in 

paragraph (2) by revising the last 

sentence to read as follows: 

225.301–4 Contract clause. 

* * * * * 

(2) * * * Information on the SPOT 

system is available at http:// 

www.dod.mil/bta/products/spot.html 

and http://www.acq.osd.mil/log/PS/ 

spot.html. 

225.1101 [Amended] 

■ 6. Section 225.1101 is amended in 

paragraph (11)(i) introductory text by 

removing ‘‘paragraph (10)’’ and adding 

in its place ‘‘paragraph (11)’’. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

252.225–7040 [Amended] 

■ 7. Section 252.225–7040 is amended 

as follows: 

■ a. By revising the clause date to read 

‘‘(JUL 2009)’’; and 

■ b. In paragraph (n)(2) by removing 

‘‘DoD Directive 2310.2, Personnel 

Recovery’’ and adding in its place ‘‘DoD 

Directive 3002.01E, Personnel Recovery 

in the Department of Defense’’. 

[FR Doc. E9–16663 Filed 7–14–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 207 

RIN 0750–AF39 

Defense Federal Acquisition 

Regulation Supplement; Lease of 

Vessels, Aircraft, and Combat Vehicles 

(DFARS Case 2006–D013) 

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 statutory 

provisions relating to the leasing of 

vessels, aircraft, and combat vehicles. 

The rule applies to long-term leases and 

charters and to contracts with a 

substantial termination liability. 

DATES: Effective Date: July 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cassandra Freeman, Defense 

Acquisition Regulations System, OUSD 

(AT&L) DPAP (DARS), IMD 3D139, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone 703–602–8383; 

facsimile 703–602–7887. Please cite 

DFARS Case 2006–D013. 

SUPPLEMENTARY INFORMATION: 

A. Background 

10 U.S.C. 2401, as amended by 

Section 815 of the National Defense 

Authorization Act for Fiscal Year 2006 

(Pub. L. 109–163), permits a military 

department to award a long-term lease 

or charter, or a contract with a 

substantial termination liability, for a 

vessel, aircraft, or combat vehicle, only 

if the Secretary of the military 

department is specifically authorized by 

law to award the contract and provides 

the appropriate notifications to the 

congressional defense committees. 

Prior to the enactment of Public Law 

109–163, the provisions of 10 U.S.C. 

2401 applied to vessels and aircraft. 

Section 815 of Public Law 109–163 

amended 10 U.S.C. 2401 to also include 

combat vehicles. 

DoD published a proposed rule at 72 

FR 28662 on May 22, 2007, to address 

the provisions of 10 U.S.C. 2401. Five 

sources submitted comments on the 

proposed rule. A discussion of the 

comments is provided below. 

1. Comment: The proposed rule 

unduly applies its requirements to all 

leases and charters instead of only longterm leases and charters. 

DoD Response: The rule has been 

amended to clarify that its requirements 

apply only to long-term leases and 

charters, and to contracts that provide 

for a substantial termination liability, 

consistent with the statutory provisions. 

2. Comment: One respondent stated 

that the approval authority specified in 

the proposed rule (head of the agency) 

is not consistent with the approval 

authority specified in the statute 

(Secretary of the military department). 

Another respondent recommended 

delegation of the approval authority to 

the head of the contracting activity, to 

be consistent with the implementation 

of 10 U.S.C. 2401a at DFARS 207.470, 

for approval of leases and charters with 

terms of 18 months or more. 

DoD Response: The final rule 

specifies the Secretary of the military 

department as the approval authority, 

consistent with 10 U.S.C. 2401. 

However, in accordance with FAR 

1.108(b), the Secretary of the military 

department may delegate this authority 

as deemed appropriate. 

3. Comment: The term ‘‘similar 

agreement’’ should be deleted from the 

rule, since this term is not defined in 

the DFARS or in the statute. 

DoD Response: The term has been 

excluded from the final rule. 

4. Comment: The rule should identify 

under what circumstances DoD can 

lease vessels, aircraft, and combat 

vehicles and how the decision to lease 

should be determined. In addition, the 

rule should include the definitions of 

the terms ‘‘long-term lease’’ and 

‘‘substantial termination liability’’ found 

in 10 U.S.C. 2401(d). 

DoD Response: The recommended 

changes have not been adopted. The 

rule is intended to inform contracting 

officers of the requirements of 10 U.S.C. 

2401, but is not intended to address all 

aspects of leasing. Leasing is a highly 

specialized area that requires close 

coordination between the contracting 

officer and legal counsel. 


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