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
Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Rules and Regulations 34271 

Assisted acquisition means the type of 

interagency contracting through which 

acquisition officials of a non-DoD 

agency award a contract or a task or 

delivery order for the acquisition of 

supplies or services on behalf of DoD. 

Direct acquisition means the type of 

interagency contracting through which 

DoD orders a supply or service from a 

Governmentwide acquisition contract 

maintained by a non-DoD agency. 

Non-DoD agency means any 

department or agency of the Federal 

Government other than DoD. 

217.7802 Policy. 

(a) A DoD acquisition official may 

place an order, make a purchase, or 

otherwise acquire supplies or services 

for DoD in excess of the simplified 

acquisition threshold through a nonDoD agency in any fiscal year 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. 

(1) This limitation shall not apply to 

the acquisition of supplies and services 

during any fiscal year for which there is 

in effect a written determination of the 

Under Secretary of Defense for 

Acquisition, Technology, and Logistics, 

that it is necessary in the interest of DoD 

to acquire supplies and services through 

the non-DoD agency during the fiscal 

year. A written determination with 

respect to a non-DoD agency shall apply 

to any category of acquisitions through 

the non-DoD agency that is specified in 

the determination. 

(2) Non-DoD agency certifications and 

additional information are available at 

http://www.acq.osd.mil/dpap/cpic/cp/ 

interagency_acquisition.html. 

(b) Departments and agencies shall 

establish and maintain procedures for 

reviewing and approving orders placed 

for supplies and services under nonDoD contracts, whether through direct 

acquisition or assisted acquisition, 

when the amount of the order exceeds 

the simplified acquisition threshold. 

These procedures shall include— 

(1) Evaluating whether using a nonDoD contract for the acquisition is in the 

best interest of DoD. Factors to be 

considered include— 

(i) Satisfying customer requirements; 

(ii) Schedule; 

(iii) Cost effectiveness (taking into 

account discounts and fees); and 

(iv) Contract administration 

(including oversight); 

(2) Determining that the tasks to be 

accomplished or supplies to be 

provided are within the scope of the 

contract to be used; 

(3) Reviewing funding to ensure that 

it is used in accordance with 

appropriation limitations; 

(4) Providing unique terms, 

conditions, and requirements to the 

assisting agency for incorporation into 

the order or contract as appropriate to 

comply with all applicable DoD-unique 

statutes, regulations, directives, and 

other requirements; and 

(5) Collecting and reporting data on 

the use of assisted acquisition for 

analysis. Follow the reporting 

requirements in Subpart 204.6. 

[FR Doc. E9–16668 Filed 7–14–09; 8:45 am] 

BILLING CODE 5001–08–P 


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