DFARS CHANGE NOTICE 20000113

[Federal Register: January 13, 2000 (Volume 65, Number 9)]

DEPARTMENT OF DEFENSE

48 CFR Parts 205 and 253

[DFARS Case 99-D029]

Defense Federal Acquisition Regulation Supplement; Paid Advertisements

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

SUMMARY: The Acting Director of Defense Procurement has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to eliminate a requirement for contracting officers to use a specific form when requesting approval to advertise in newspapers. DoD has determined that use of the form is no longer necessary.

EFFECTIVE DATE: January 13, 2000.

FOR FURTHER INFORMATION CONTACT: Ms. Melissa Rider, Defense Acquisition

Regulations Council, PDUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-4245; telefax (703) 602-0350. Please cite DFARS Case 99-D029.

SUPPLEMENTARY INFORMATION:

A. Background

DFARS 205.502 has required DoD contracting activities to use DD Form 1535, Request/Approval for Authority to Advertise, to document approval for the publication of paid advertisements in newspapers. DoD has determined that use of a specific form for this purpose is no longer necessary. Therefore, this final rule amends DFARS 205.502 and Part 253 to remove references to the form.

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 final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577 and publication for public comment 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 99-D029.

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 205 and 253

Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Parts 205 and 253 are amended as follows:

Paid Advertisements

DFARS Case 99-D029

Final Rule

PART 205-PUBLICIZING CONTRACT ACTIONS

* * * * *

SUBPART 205.5-PAID ADVERTISEMENTS

205.502 Authority.

* * * * *

(a) Newspapers.

(i) Heads of contracting activities are delegated authority to approve the publication of paid advertisements in newspapers. They may redelegate this authority in accordance with agency procedures.

(ii) Submit DD Form 1535, Request/Approval for Authority to Advertise, to the approval authority to obtain special or general authority.

(A) Special authority permits the publication of a given advertisement for a specified number of times in designated newspapers.

(B) General authority permits the publication of such advertisements as may be required during a designated fiscal year.

[(ii) Before advertising in newspapers, the contracting officer must obtain written approval from the agency official designated in accordance with paragraph (a)(i) of this section.]

PART 253--FORMS

3. The note at the end of Part 253 is amended by removing the entry``253.303-1535 Request/Approval for Authority to Advertise.''.

[Federal Register: January 13, 2000 (Volume 65, Number 9)]

[DEPARTMENT OF DEFENSE

48 CFR Parts 209, 243, and 252

[DFARS Case 99-D303]

Defense Federal Acquisition Regulation Supplement; Institutions of Higher Education

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

SUMMARY: The Acting Director of Defense Procurement has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 549 of the National Defense Authorization Act for Fiscal Year 2000. Section 549 amends statutory provisions pertaining to the denial of Federal contracts and grants to institutions of higher education that prohibit Senior Reserve Officer Training Corps units or military recruiting on campus.

DATES: Effective date: January 13, 2000.

Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before March 13, 2000, to be considered in the formation of the final rule.

ADDRESSES: Interested parties should submit written comments to:

Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telefax (703) 602-0350.

E-mail comments submitted via the Internet should be addressed to: dfars@acq.osd.mil

Please cite DFARS Case 99-D303 in all correspondence related to this rule. E-mail comments should cite DFARS Case 99-D303 in the subject line.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0288.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule revises DFARS 209.470, 243.105, and 252.209-7005 to implement Section 549 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65). Section 549 amends 10 U.S.C. 983 to prohibit DoD from providing funds by contract or grant to an institution of higher education (including any subelement of that

institution) if the Secretary of Defense determines that the institution (or any subelement of the institution) has a policy or practice that prohibits, or in effect prevents, Senior Reserve Officer Training Corps (ROTC) units or military recruiting on campus.

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 rule applies only to institutions of higher education that prohibit Senior ROTC units or military recruiting on campus. 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 subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 99-D303.

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 this interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 549 of the National Defense Authorization Act for Fiscal Year 2000. Section 549 amends statutory

provisions pertaining to the denial of Federal contracts and grants to institutions of higher education that prohibit Senior ROTC units or military recruiting on campus. Section 549 became effective on October 5, 1999. DoD will consider comments received in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 209, 243, and 252

Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Parts 209, 243, and 252 are amended as follows:

Institutions of Higher Education DFARS Case 99-D303 Interim Rule

PART 209-CONTRACTOR QUALIFICATIONS

* * * * *

209.470 [Reserve Officer Training Corps and] M[m]ilitary recruiting on campus.

209.470-1 [Definition.

"Institution of higher education," as used in this section, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.]

[209.470-2] Policy.

(a)(1) Section 558 of the National Defense Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) provides that no funds available to DoD may be provided by grant or contract to any institution of higher education that has a policy of denying or that effectively prevents the Secretary of Defense from obtaining for military recruiting purposes-

(i) Entry to campuses or access to students on campuses; or

(ii) Access to directory information pertaining to students.

(2) Section 541 of the National Defense Authorization Act for Fiscal Year 1996 (10 U.S.C. 983) provides that no funds appropriated or otherwise available to DoD may be obligated by contract or by grant, including a grant of funds to be available for student aid, to any institution of higher education that, as determined by the Secretary of Defense, has an anti-ROTC policy and at which, as determined by the Secretary, the Secretary would otherwise maintain or seek to establish a unit of the Senior Reserve Officer Training Corps, or at which the Secretary would otherwise enroll or seek to enroll students for participation in a unit of the Senior Reserve Officer Training Corps at another nearby institution of higher education. This prohibition applies to new contracts and all contract modifications (see 243.105). This prohibition shall cease to apply to that institution upon a determination by the Secretary that the institution no longer has an anti-ROTC policy.

(b) Institutions of higher education that are determined under 32 CFR Part 216 to have the policy or practice in paragraph (a)(1) or (a)(2) of this subsection shall be listed as ineligible on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration (see FAR 9.404).

(c) In cases where a determination is made under 32 CFR Part 216 that specific subordinate elements of an institution of higher education, rather than the institution as a whole, have the policy or practice in paragraph (a)(1) or (a)(2) of this subsection, 32 CFR Part 216 provides that the prohibition on use of DoD funds applies only to those subordinate elements.

[(a) Except as provided in paragraph (b) of this subsection, 10 U.S.C. 983 prohibits DoD from providing funds by contract or grant to an institution of higher education if the Secretary of Defense determines that the institution has a policy or practice that prohibits or in effect prevents-

(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) at that institution;

(2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education;

(3) The Secretary of a military department or the Secretary of Transportation from gaining entry to campuses, or access to students on campuses, for purposes of military recruiting; or

(4) Military recruiters from accessing certain information pertaining to students enrolled at that institution.

(b) The prohibition in paragraph (a) of this subsection does not apply to an institution of higher education if the Secretary of Defense determines that-

(1) The institution has ceased the policy or practice described in paragraph (a) of this subsection; or

(2) The institution has a long-standing policy of pacifism based on historical religious affiliation.]

209.470-2[3] Procedures.

(a) Agencies shall not solicit offers from, award contracts to, or consent to subcontracts with ineligible contractors.

(b) After a determination of ineligibility under 209.470-1(a)(1), departments and agencies shall make no further payments under existing contracts with the institutions, and shall initiate termination action.

[If the Secretary of Defense determines that an institution of higher education is ineligible to receive DoD funds because of a policy or practice described in 209.470-2(a)-

(a) The Secretary of Defense will list the institution on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration (also see FAR 9.404 and 32 CFR Part 216); and

(b) DoD components-

(1) Must not solicit offers from, award contracts to, or consent to subcontracts with the institution;

(2) Must make no further payments under existing contracts with the institution; and

(3) Must terminate existing contracts with the institution.]

209.470-3[4] Contract clause.

Use the clause at 252.209-7005, [Reserve Officer Training Corps and] Military Recruiting on Campus, in all solicitations and contracts with institutions of higher education.

* * * * *

PART 243-CONTRACT MODIFICATIONS

* * * * *

243.105 Availability of funds.

(a)(i) * * *

(ii) Section 558 of the National Defense Authorization Act for Fiscal Year 1995 (Pub. L. 103-337) provides that no funds available to DoD may be provided by contract or contract modification, nor may contract payments be made, to an institution of higher education that has a policy of denying or that effectively prevents the Secretary of Defense from obtaining for military recruiting purposes-

(A) Entry to campuses or access to students on campuses; or

(B) Access to directory information pertaining to students (see 209.470).

(iii) Pursuant to 10 U.S.C. 983, no funds may be obligated by contract or contract modification to an institution of higher education that has an anti-ROTC policy (see 209.470).

[In accordance with 10 U.S.C. 983, do not provide funds by contract or contract modification, or make contract payments, to an institution of higher education that has a policy or practice of hindering Senior Reserve Officer Training Corps units or military recruiting on campus as described at 209.470.]

* * * * *

PART 252-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

* * * * *

252.209-7005 [Reserve Officer Training Corps and] Military Recruiting on Campus.

As prescribed in 209.470-3[4], use the following clause:

[RESERVE OFFICER TRAINING CORPS AND] MILITARY

RECRUITING ON CAMPUS (FEB 1996 [JAN 2000])

(a) Definition. "Directory information," as used in this clause, means, with respect to a student, the student's name, address, telephone listing, date and place of birth, level of education, degrees received, and the most recent previous educational institution enrolled in by the student. Students are individuals who are 17 years of age or older.

(b) General. An institution of higher education that has been determined, using procedures established by the Secretary of Defense at 32 CFR Part 216: (1) to have a policy of denying, or (2) to effectively prevent the Secretary of Defense from obtaining for military recruiting purposes, entry to such institution's campuses, access to students on those campuses, or access to directory information pertaining to its students, is ineligible for contract award and payments under existing contracts. In addition, the Government shall terminate this contract for the Contractor's material failure to comply with the terms and conditions of award.

(c) Agreement. The Contractor represents that it does not now have and agrees that during performance of this contract it will not adopt a policy of denying, and that it does not, is not, and will not during performance of the contract, effectively prevent the Secretary of Defense from obtaining for military recruiting purposes entry to campuses, access to students on campuses, or access to directory information pertaining to students.

[(a) Definition. "Institution of higher education," as used in this clause, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.

(b) Limitation on contract award. Except as provided in paragraph (c) of this clause, an institution of higher education is ineligible for contract award if the Secretary of Defense determines that the institution has a policy or practice (regardless of when implemented) that prohibits or in effect prevents-

(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) (in accordance with

10 U.S.C. 654 and other applicable Federal laws) at that institution;

(2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education;

(3) The Secretary of a military department or the Secretary of Transportation from gaining entry to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting; or

(4) Military recruiters from accessing, for purposes of military recruiting, the following information pertaining to students (who are 17 years of age or older) enrolled at that institution:

(i) Name.

(ii) Address.

(iii) Telephone number.

(iv) Date and place of birth.

(v) Educational level.

(vi) Academic major.

(vii) Degrees received.

(viii) Most recent educational institution enrollment.

(c) Exception. The limitation in paragraph (b) of this clause does not apply to an institution of higher education if the Secretary of Defense determines that-

(1) The institution has ceased the policy or practice described in paragraph (b) of this clause; or

(2) The institution has a long-standing policy of pacifism based on historical religious affiliation.

(d) Agreement. The Contractor represents that it does not now have, and agrees that during performance of this contract it will not adopt, any policy or practice described in paragraph (b) of this clause, unless the Secretary of Defense has granted an exception in accordance with paragraph (c)(2) of this clause.

(e) Notwithstanding any other clause of this contract, if the Secretary of Defense determines that the Contractor misrepresented its policies and practices at the time of contract award or has violated the agreement in paragraph (d) of this clause-

(1) The Contractor will be ineligible for further payments under this and any other contracts with the Department of Defense; and

(2) The Government will terminate this contract for default for the Contractor's material failure to comply with the terms and conditions of award.]

(End of clause)

[Federal Register: January 13, 2000 (Volume 65, Number 9)]

DEPARTMENT OF DEFENSE

48 CFR Part 235

[DFARS Case 99-D302]

Defense Federal Acquisition Regulation Supplement; Manufacturing Technology Program

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

SUMMARY: The Acting Director of Defense Procurement has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 216 of the National Defense Authorization Act for Fiscal Year 2000. Section 216 amends statutory provisions pertaining to cost-sharing requirements for contract5s under the Manufacturing Technology Program.

DATES: Effective date: January 13, 2000.

Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before March 13, 2000, to be considered in the formation of the final rule.

ADDRESSES: Interested parties should submit written comments to: Defense Acquisition Regulations Council, Attn: Ms. Susan Schneider, PDUSD(AT&L)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telefax (703) 602-0350.

E-Mail comments submitted via the internet should be addressed to: dfars@acq.osd.mil

Please cite DFARS Case 99-D302 in all correspondence related to this rule. E-mail comments should cite DFARS Case 99-D302 in the subject line.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, (703) 602-0326.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule revises DFARS 235.006-70 to implement Section 216 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65). Section 216 amends 10 U.S.C. 2525 to eliminate the mandatory cost-sharing requirements for contracts under the Manufacturing Technology Program, and to provide that cost sharing be included as a

factor in competitive procedures for evaluating proposals under manufacturing technology projects.

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 DoD awards approximately only 20 new contracts under the Manufacturing Technology Program each year. 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 99-D302.

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 this interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 216 of the National Defense Authorization Act for Fiscal Year 2000. Section 216 eliminates the

mandatory cost-sharing requirements in the Manufacturing Technology Program and provides that cost sharing be included as a factor in competitive procedures for evaluating proposals under manufacturing technology projects. Section 216 because effective on October 5, 1999. DoD will consider comments received in response to this interim rule in

the formation of the final rule.

List of Subject in 48 CFR Part 235

Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Part 235 is amended as follows:

Manufacturing Technology Program

DFARS Case 99-D302

Interim Rule

PART 235-RESEARCH AND DEVELOPMENT CONTRACTING

* * * * *

235.006-70 Manufacturing Technology Program.

(a) This subsection implements 10 U.S.C. 2525(d).

(b) Award all contracts under the Manufacturing Technology Program (see DoDI 4200.15, Manufacturing Technology Program) using competitive procedures.

(c) (1) Use a cost-sharing arrangement (see FAR 16.303) for contracts awarded under the Manufacturing Technology Program, unless the USD(A&T) makes a determination that the contract is for a program that-

(i) Is not likely to have any immediate and direct commercial application;

(ii) Is of sufficiently high risk to discourage cost sharing by non-Federal Government sources; or

(iii) Will be carried out by an institution of higher education.

(2) Document the contract file with the rationale for any determination made in accordance with paragraph (c)(1) of this subsection.

(d) For each contract entered into on a cost-sharing basis, determine the ratio of contractor cost to Government cost by competitive procedures, i.e., each offeror must propose the ratio as part of its proposal. If only one offer is received, negotiate the ratio that provides the best value to the Government.

[In accordance with 10 U.S.C. 2525(d), for acquisitions under the Manufacturing Technology Program-

(a) Award all contracts using competitive procedures; and

(b) Include in all solicitations an evaluation factor that addresses the extent to which offerors propose to share in the cost of the project (see FAR 15.304).]

[Federal Register: January 13, 2000 (Volume 65, Number 9)]

DEPARTMENT OF DEFENSE

48 CFR Part 241

[DFARS Case 99-D309]

Defense Federal Acquisition Regulation Supplement; Authority Relating to Utility Privatization

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

SUMMARY: The Acting Director of Defense Procurement has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 2812 of the National Defense Authorization Act for Fiscal Year 2000. Section 2812 provides that DoD may enter into utility service contracts related to the conveyance of a utility system for periods not to exceed 50 years.

DATES: Effective date: January 13, 2000.

Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before March 13, 2000, to be considered in the formation of the final rule.

ADDRESSES: Interested parties should submit written comments to:

Defense Acquisition Regulations Council, Attn: Ms. Melissa Rider, PDUSD

(AT&L)DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-

3062. Telefax (703) 602-0350.

E-mail comments submitted via the Internet should be addressed to: dfars@acq.osd.mil

Please cite DFARS Case 99-D309 in all correspondence related to this rule. E-mail comments should cite DFARS Case 99-D309 in the subject line.

FOR FURTHER INFORMATION CONTACT: Ms Melisssa Rider, (703) 602-4245.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule adds a new section at DFARS 241.103 to implement Section 2812 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65). Section 2812 amends 10 U.S.C. 2688 to provide authority for DoD to enter into utility service contracts related to the conveyance of a utility system for periods not to exceed 50 years.

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 except 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 utility services generally are not provided by small business concerns. 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 99-D309.

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 this interim rule prior to affording the public an opportunity to comment. This interim rule amends the DFARS to add policy regarding DoD's authority to enter into utility service contracts with terms of up to 50 yeas, if the contracts are connected with the conveyance of a utility system. The rule implements Section 2812 of the National Defense Authorization Act for Fiscal Year 2000. Section 2812 became effective on October 5, 1999. DoD will consider comments received in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Part 241

Government procurement. Michele P. Peterson, Executive Editor, Defense Acquisition Regulations Council.

Therefore, 48 CFR Part 241 is amended as follows:

Authority Relating to Utility Privatization

DFARS Case 99-D309

Interim Rule

PART 241-ACQUISITION OF UTILITY SERVICES

SUBPART 241.1-GENERAL

* * * * *

[241.103 Statutory and delegated authority.

The contracting officer may enter into a utility service contract related to the conveyance of a utility system for a period not to exceed 50 years (10 U.S.C. 2688(c)(3)).]