DFARS CHANGE NOTICE 20020129

Final Rules:

Memorandum of Understanding - Switzerland (DFARS Case 2001-D019)

This final rule implements a December 10, 2001, determination of the Deputy Secretary of Defense that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of defense equipment produced in Switzerland. The rule adds Switzerland to the list of countries for which DoD has made such public interest determinations, and removes Switzerland from the list of countries for which exemption from the Buy American Act is permitted only on a purchase-by-purchase basis.

Affected subparts/sections: 225.8

Memorandum of Understanding-Switzerland

DFARS Case 2001-D019

Final Rule

PART 225-FOREIGN ACQUISITION

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225.872 Contracting with qualifying country sources.

225.872-1 General.

(a) As a result of memoranda of understanding and other international agreements, the DoD has determined it inconsistent with the public interest to apply restrictions of the Buy American Act/Balance of Payments Program to the acquisition of defense equipment which is mined, produced, or manufactured in any of the following countries (referred to in this part as "qualifying countries")-

Australia Belgium Canada Denmark Egypt Federal Republic of Germany France Greece Israel Italy Luxembourg Netherlands Norway Portugal Spain [Switzerland] Turkey United Kingdom of Great Britain and Northern Ireland

(b) Individual acquisitions for products of the following qualifying countries may, on a purchase-by-purchase basis, be exempted from application of the Buy American Act and Balance of Payments Program as inconsistent with the public interest-

Austria Finland Sweden Switzerland

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Caribbean Basin Country End Products (DFARS Case 2000-D302)

This rule finalizes, without change, the interim rule published on September 11, 2001 (Change Notice 20010911), which removed Panama from the definition of "Caribbean Basin country" and clarified which Caribbean Basin country end products are subject to duty-free treatment.

Affected subparts/sections: None

Tax Exemptions (Italy) (DFARS Case 2000-D027)

This final rule revises a clause used in contracts to be performed in Italy. The rule updates the information pertaining to tax exemptions that contractors must include on their invoices.

Affected subparts/sections: 252.229

Tax Exemptions (Italy)

DFARS Case 2000-D027

Final Rule

PART 252-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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252.229-7003 Tax Exemptions (Italy).

As prescribed in 229.402-70(c), use the following clause:

TAX EXEMPTIONS (ITALY) (JUN 1997[JAN 2002])

(a) The Contractor represents that the contract prices, including the prices in subcontracts awarded hereunder [this contract], do[es] not include taxes from which the United States Government is exempt.

(b) The United States Government is exempt from payment of Imposta Valore Aggiunto (IVA) tax in accordance with Article 72 of the IVA implementing decree on all supplies and services sold to United States Military Commands in Italy.

[(1) The Contractor shall include the following information on invoices submitted to the United States Government:

(i) The contract number.

(ii) The IVA tax exemption claimed pursuant to Article 72 of Decree Law 633, dated October 26, 1972.

(iii) The following fiscal code(s): [Contracting Officer must insert the applicable fiscal code(s) for military activities within Italy: 80028250241 for Army, 80156020630 for Navy, or 91000190933 for Air Force.]]

(1[2)(i]) Upon receipt of the invoice, the paying office will stamp[include] the following statement [certification] on one copy of the invoice:

"I certify that this invoice is true and correct and reflects expenditures made in Italy for the Common Defense by the United States Government pursuant to international agreements. The amount to be paid does not include the IVA tax, because this transaction is not subject to the tax in accordance with Article 72 of Decree Law 633, dated October 26, 1972."

[An authorized United States Government official will sign the copy of the invoice containing this certification.]

(2[ii]) [The paying office will return the]This certified copy, signed by an authorized Government official, will be returned together with payment to the Contractor. The payment will not include the amount of the IVA tax.

(3[iii]) The Contractor must[shall] retain this[the certified] copy of the invoice with the representation to substantiate non-payment of the IVA tax.

[(3) The Contractor may address questions regarding the IVA tax to the Ministry of Finance, IVA Office, Rome (06) 520741.]

(c) In addition to the IVA tax, purchases by the United States Forces in Italy are exempt from the following taxes:

(1) Imposta di Fabbricazione (Production Tax for Petroleum Products).

(2) Imposta di Consumo (Consumption Tax for Electrical Power).

(3) Dazi Doganali (Customs Duties).

(4) Tassa di Sbarco e d'Imbarco sulle Merci Transportate per Via Aerea e per Via Maritima (Port Fees).

(5) Tassa de Circolazione sui Veicoli (Vehicle Circulation Tax).

(6) Imposta di Registro (Registration Tax).

(7) Imposta di Bollo (Stamp Tax).

(d) The Contractor's administrative procedures for claiming and validating the exemptions are as follows:

(1) Contract offer price shall not reflect IVA or any other tax or duty.

(2) Contract number must be set forth on Contractor invoices, which should state the exemptions claimed pursuant to Article 72 of Decree Law 633, dated October 26, 1972, for IVA exemption.

(3) Fiscal code for appropriated funds payments by Aviano Air Base is: 91000190933.

(4) Questions may be addressed to the Ministry of Finance, 11th District, Rome (06) 5910982.

(End of clause)

Veterans Employment Emphasis (DFARS Case 1997-D314)

This final rule removes DFARS requirements pertaining to contractor reporting on employment of veterans. The DFARS text is no longer necessary, because the reporting requirements were added to the FAR in Item IV of Federal Acquisition Circular 2001-01 on October 22, 2001.

Affected subparts/sections: DFARS Table of Contents; 209.1; 212.5; Part 213 Table of Contents; 213.0; Part 217 Table of Contents; 217.2; Part 222 Table of Contents; 222.13; Part 252 Table of Contents; 252.209

Veterans Employment Emphasis

DFARS Case 1997-D314

Final Rule

PART 209-CONTRACTOR QUALIFICATIONS

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209.104-1 General standards.

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(g) * * *

(iii) A contracting officer shall not enter into or renew a contract with a contractor that is subject to the reporting requirements of 38 U.S.C. 4212(d) pertaining to employment of veterans, but has not submitted the most recent report required by 38 U.S.C. 4212(d) for 1997 or a subsequent year (see 222.1304(b)).

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209.104-70 Solicitation provisions.

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(c) Use the provision at 252.209-7003, Compliance with Veterans' Employment Reporting Requirements, in solicitations with a value estimated to exceed the simplified acquisition threshold.

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PART 212-ACQUISITION OF COMMERCIAL ITEMS

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212.503 Applicability of certain laws to Executive Agency contracts for the acquisition of commercial items.

(a) The following laws are not applicable to contracts for the acquisition of commercial items:

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(xii) Section 8117, Pub. L. 105-56, Restriction on Use of Funds Appropriated for Fiscal Year 1998 (see 222.1304(b)).

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PART 213-SIMPLIFIED ACQUISITION PROCEDURES

213.005 Federal Acquisition Streamlining Act of 1994 list of inapplicable laws.

(a) The restriction on use of funds appropriated for fiscal years 1998 in Section 8117 of the National Defense Appropriations Act for Fiscal Year 1998 (Pub. L. 105-56) is inapplicable to contracts at or below the simplified acquisition threshold (see 222.1304(b)):

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PART 217-SPECIAL CONTRACTING METHODS

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217.207 Exercise of options.

(c) Except for contracts for the acquisition of commercial items, if the contractor has any contracts containing the clause at FAR 52.222-37, Employment Reports on Disabled Veterans and Veterans of the Vietnam Era, the contracting officer may exercise an option with a value exceeding the simplified acquisition threshold only after determining that the contractor has submitted the most recent report required by that clause (see 222.1304(b)).

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PART 222-APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

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222.1304 Department of Labor notices and reports.

(b) As provided in Section 8117 of the National Defense Appropriations Act for Fiscal Year 1998 (Pub. L. 105-56), no funds made available in that Act may be obligated or expended to enter into or renew a contract with a contractor that is subject to the reporting requirements of 38 U.S.C. 4212(d) (i.e., the VETS-100 report required by FAR 52.222-37, Employment Reports on Disabled Veterans and Veterans of the Vietnam Era) but has not submitted the most recent report required by 38 U.S.C. 4212(d) for 1997 or a subsequent year.

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PART 252-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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252.209-7003 Compliance with Veterans' Employment Reporting Requirements. [Reserved]

As prescribed in 209.104-70(c), use the following provision:

COMPLIANCE WITH VETERANS' EMPLOYMENT REPORTING REQUIREMENTS

(MAR 1998)

By submission of its offer, the offeror represents that, if it is subject to the reporting requirements of 38 U.S.C. 4212(d) (i.e., the VETS-100 report required by Federal Acquisition Regulation clause 52.222-37, Employment Reports on Disabled Veterans and Veterans of the Vietnam Era), it has submitted the most recent report required by 38 U.S.C. 4212(d).

(End of provision)

Technical Amendments

This final rule updates activity names and addresses; reflects the extension of a memorandum of understanding that permits DoD to award contracts directly to 8(a) concerns; and deletes text pertaining to nonconforming supplies or services that duplicates text found at FAR 46.101 and 46.103(e).

Affected subparts/sections: 202.1; 215.4; 219.8; 242.12; 246.4; Appendix G, Part 3

Technical Amendments

Final Rule

PART 202-DEFINITIONS OF WORDS AND TERMS

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202.101 Definitions.

"Contracting activity" for DoD also means * * *

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NAVY

Deputy, Acquisition and Business Management, Office of the

Assistant Secretary of the Navy (Research, Development, and

Acquisition)

Naval Air Systems Command

Space and Naval Warfare Systems Command

Naval Facilities Engineering Command

Naval Inventory Control Point

Naval Sea Systems Command

Naval Supply Systems Command

Office of Naval Research

Military Sealift Command

Strategic Systems Programs

Headquarters, U.S. Marine Corps

Marine Corps Materia[e]l Command

Installations and Logistics, Headquarters, U.S. Marine Corps

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PART 215-CONTRACTING BY NEGOTIATION

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215.404-76 Reporting profit and fee statistics.

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(b) Participating contracting offices and their designated offices are-

Contracting Office	Designated Office
ARMY
All	U.S. Army Contracting Support Agency ATTN: SARD-RS [Headquarters, Department of the Army ATTN: SAAL-PA Skyline 6, Suite 302] 5109 Leesburg Pike, Suite 916 Falls Church, VA 22041-3201

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PART 219-SMALL BUSINESS PROGRAMS

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SUBPART 219.8-CONTRACTING WITH THE SMALL BUSINESS ADMINISTRATION (THE 8(A) PROGRAM)

219.800 General.

(a) By Memorandum of Understanding (MOU) dated May 6, 1998, between the Small Business Administration (SBA) and the Department of Defense (DoD), the SBA delegated to the Under Secretary of Defense (Acquisition, Technology, and Logistics) its authority under paragraph 8(a)(1)(A) of the Small Business Act (5 U.S.C. 637(a)) to enter into 8(a) prime contracts, and its authority under 8(a)(1)(B) of the Small Business Act to award the performance of those contracts to eligible 8(a) Program participants. Consistent with the provisions of this subpart, this authority is hereby redelegated to DoD contracting officers within the United States, its territories and possessions, Puerto Rico, the Trust Territory of the Pacific Islands, and the District of Columbia, to the extent that it is consistent with any dollar or other restrictions established in individual warrants. This authority is being delegated and redelegated on a pilot test basis and shall expire on December 31, 2001 [March 31, 2002]. Notwithstanding this MOU, contracting officers may elect to award the contract pursuant to the provisions of FAR Subpart 19.8.

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PART 242-CONTRACT ADMINISTRATION AND AUDIT SERVICES

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SUBPART 242.12--NOVATION AND CHANGE-OF-NAME AGREEMENTS

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242.1203 Processing agreements.

(b)(2)(A) For contracts awarded by the military departments, provide notices to the following addressees instead of individual contracting or contract administration offices-

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Navy	Office of the Assistant Secretary of the Navy (RDA) Procurement Policy Washington, DC 20350-1000 [Research, Development & Acquisition Acquisition and Business Management 2211 South Clark Place, Room 578 Arlington, VA 22202-3738]

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PART 246-QUALITY ASSURANCE

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246.407 Nonconforming supplies or services.

(1) Contracting officers shall use the following MIL-STD-109 definitions in determining conformance with contract requirements-

(i) "Critical nonconformance" is a nonconformance that judgment and experience indicate-

(A) Is likely to result in hazardous or unsafe conditions for individuals using, maintaining, or depending upon the supplies or services; or

(B) Is likely to prevent performance of a vital agency mission.

(ii) "Major nonconformance" is a nonconformance, other than critical, that is likely to result in failure, or to materially reduce the usability of the supplies or services for their intended purpose.

(iii) "Minor nonconformance" is a nonconformance that is not likely to materially reduce the usability of the supplies or services for their intended purpose, or is a departure from established standards having little bearing on the effective use or operation of the supplies or services.

(2) Contracting officers shall ensure that-

(i) Nonconformances are identified; and

(ii) The significance of a nonconformance is established when considering the acceptability of supplies or services which do not meet contract requirements.

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APPENDIX G-ACTIVITY ADDRESS NUMBERS

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PART 3-NAVY ACTIVITY ADDRESS NUMBERS

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[N39826 Fleet and Industrial Supply Center

L5L Norfolk Detachment Earle

201 Highway 34 South, Building C-33

Colts Neck, NJ 07722-5019]

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N62913 Commander

(MAJ00022) Naval Recruiting Area Three

MLL 451 College Street

PO Box 4887

Macon, GA 31208-4887

N62913 Commander

(MAJ00022) Naval Recruiting Area Three

MLL 451 College Street

PO Box 4887

Macon, GA 31208-4887

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