An official website of the United States Government
DPN20120615
[Federal Register Volume 77, Number 116 (Friday, June 15, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14259]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 201, 203, 204, 212, 213, 217, 219, 222, 225, 233, 243, 252, and Appendix I to Chapter 2
RIN 0750-AH55
Defense Federal Acquisition Regulation Supplement: Title 41 Positive Law Codification--Further Implementation (DFARS Case 2012-D003)
AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to conform statutory titles throughout the DFARS to the new Positive Law Codification of Title 41, United States Code, ``Public Contracts.''
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-371-6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 76 FR 78874 on December 20, 2011. The comment period closed on February 21, 2012. One respondent submitted a public comment in response to the proposed rule.
DoD is updating the historical names of the Acts in the DFARS (e.g., the ``Service Contract Act of 1965'' is now the ``Service Contract Labor Standards statute''). A table providing the historical titles of the Acts, the present statutory citation, and the new titles of the statutes is being proposed under FAR case 2011-018 for inclusion at FAR 1.110. That table will cover acts under both titles 40 and 41. Additionally, editorial changes are being made to conform to DFARS drafting conventions.
Although there were no substantive changes to the meaning of the statutes, there were some changes in terminology.
II. Discussion and Analysis
One respondent submitted two edits, which have been incorporated in the final rule at 225.1101(2)(i)(C) and 225.7000(b).
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD certifies that this final rule will not 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 does not change any policies or requirements. It just changes and updates references and terminology. Additionally, the proposed rule published at 76 FR 78874 on December 20, 2011, invited comments from small businesses and other interested parties. No comments were received from small entities on the affected DFARS subparts with regard to small businesses. Therefore, a Final Regulatory Flexibility Analysis has not been performed.
V. Paperwork Reduction Act
The rule does not impose any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 201, 203, 204, 212, 213, 217, 219, 222, 225, 233, 243, 252, and Appendix I to Chapter 2
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 201, 203, 204, 212, 213, 217, 219, 222, 225, 233, 243, 252, and 48 CFR chapter 2 appendix I are amended as follows:
1. The authority citation for 48 CFR parts 201, 204, 212, 213, 217, 219, 225, 243, 252, and 48 CFR chapter 2 appendix I continues to read as follows:
Authority: 41 U.S.C. 1303 and CFR chapter 1.
PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM
201.107 [Amended]
2. Section 201.107 introductory text is amended by removing ``In accordance with section 29 of the Office of Federal Procurement Policy Act (41 U.S.C. 1304)'' and adding ``In accordance with 41 U.S.C. 1304'' in its place.
201.304 [Amended]
3. Section 201.304 is amended in paragraph (2) introductory text in by removing ``In accordance with section 29 of the Office of Federal Procurement Policy Act (41 U.S.C. 1304)'' and adding ``In accordance with 41 U.S.C. 1304'' in its place.
PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
4. The authority citation for 48 CFR part 203 is revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1
203.070 [Amended]
5. Section 203.070 is amended in paragraph (f) by removing ``Anti-kickback Act'' and adding ``Kickbacks'' in its place.
203.502-2 [Amended]
6. Section 203.502-2 is amended in paragraph (h) introductory text by removing ``under the Anti-Kickback Act of 1986'' and adding ``under 41 U.S.C. chapter 87, Kickbacks'' in its place.
PART 204--ADMINISTRATIVE MATTERS
204.1202 [Amended]
7. Section 204.1202 is amended--
a. In paragraph (2)(v), by removing ``Buy American Act--Balance of Payments Program Certificate'' and adding ``Buy American--Balance of Payments Program Certificate'' in its place; and
b. In paragraph (2)(ix), by removing ``Buy American Act--Free Trade Agreements--Balance of Payments Program Certificate'' and adding ``Buy American--Free Trade Agreements--Balance of Payments Program Certificate'' in its place.
8. In 204.7003, revise paragraph (a)(3)(vi) to read as follows:204.7003 Basic PII number.
(a) * * *
(3) * * *
(vi) Contracting actions placed with or through other Government departments or agencies or against contracts placed by such departments or agencies outside the DoD (including actions from nonprofit agencies employing people who are blind or severely disabled (AbilityOne), and the Federal Prison Industries (UNICOR))--F
* * * * *
PART 212--ACQUISITION OF COMMERCIAL ITEMS
212.301 [Amended]
9. Section 212.301 is amended--
a. In paragraph (f)(i)(A) by removing ``Buy American Act--Balance of Payments Program Certificate'' and adding ``Buy American--Balance of Payments Program Certificate'' in its place; and
b. In paragraph (f)(i)(C), removing ``Buy American Act--Free Trade Agreements--Balance of Payments Program Certificate'' and adding ``Buy American--Free Trade Agreements--Balance of Payments Program Certificate'' in its place.
212.7102-1 [Amended]
10. Section 212.7102-1 is amended in paragraph (e)(2) by removing ``section 26 of the Office of Federal Procurement Policy Act (41 U.S.C. 1502)'' and adding ``41 U.S.C. 1502'' in its place.
PART 213--SIMPLIFIED ACQUISITION PROCEDURES
213.301 [Amended]
11. Section 213.301 is amended in paragraph (1) by removing ``Continental Shelf lands'' and adding ``Continental Shelf'' in its place.
213.302-5 [Amended]
12. Section 213.302-5 is amended--
a. In the first sentence of paragraph (d) introductory text by removing ``Buy American Act--Supplies'' and adding ``Buy American--Supplies'' in its place and in the second sentence, removing ``Buy American Act'' and adding ``Buy American statute'' in its place; and
b. Removing ``Act'' from paragraphs (d)(i) and (d)(ii).
PART 217--SPECIAL CONTRACTING METHODS
217.7000 [Amended]
13. Section 217.7000 is amended by removing ``Section 201(c) of the Federal Property and Administrative Services Act of 1949, 63 Stat. 384, as amended (40 U.S.C. 481(c))'' and adding ``40 U.S.C. 503'' in its place.
PART 219--SMALL BUSINESS PROGRAMS
219.703 [Amended]
14. Section 219.703 is amended in paragraph (a) by removing ``the Javits-Wagner-O'Day Act (41 U.S.C. 8502-8504)'' and adding ``41 U.S.C. chapter 85'' in its place.
PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
15. The authority citation for 48 CFR part 222 is revised to read as follows:
Authority: 41 U.S.C. 1303 and CFR chapter 1.
Subpart 222.3--[Amended]
16. Subpart 222.3 is amended in the subpart heading by removing ``Act''.
222.302 [Amended]
17. Section 222.302 is amended in the introductory text by removing ``Act''.
18. Section 222.402-70 is amended by revising paragraph (a) introductory text and paragraphs (b), (c), (d), and (f) to read as follows:
222.402-70 Installation support contracts.
(a) Apply both the Service Contract Labor Standards statute and the Construction Wage Rate Requirements statute to installation support contracts if--
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(b) Service Contract Labor Standards statute coverage under the contract. Contract installation support requirements, such as plant operation and installation services (i.e., custodial, snow removal, etc.) are subject to the Service Contract Labor Standards. Apply Service Contract Labor Standards clauses and minimum wage and fringe benefit requirements to all contract service calls or orders for such maintenance and support work.
(c) Construction Wage Rate Requirements statute coverage under the contract. Contract construction, alteration, renovation, painting, and repair requirements (i.e., roof shingling, building structural repair, paving repairs, etc.) are subject to the Construction Wage Rate Requirements statute. Apply Construction Wage Rate Requirements clauses and minimum wage requirements to all contract service calls or orders for construction, alteration, renovation, painting, or repairs to buildings or other works.
(d) Repairs versus maintenance. Some contract work may be characterized as either Construction Wage Rate Requirements painting/repairs or Service Contract Labor Standards maintenance. For example, replacing broken windows, spot painting, or minor patching of a wall could be covered by either the Construction Wage Rate Requirements or the Service Contract Labor Standards. In those instances where a contract service call or order requires construction trade skills (i.e., carpenter, plumber, painter, etc.), but it is unclear whether the work required is Service Contract Labor Standards maintenance or Construction Wage Rate Requirements painting/repairs, apply the following rules:
(1) Individual service calls or orders which will require a total of 32 or more work hours to perform shall be considered to be repair work subject to the Construction Wage Rate Requirements.
(2) Individual service calls or orders which will require less than 32 work hours to perform shall be considered to be maintenance subject to the Service Contract Labor Standards.
(3) Painting work of 200 square feet or more to be performed under an individual service call or order shall be considered to be subject to the Construction Wage Rate Requirements statute regardless of the total work hours required.
* * * * *
(f) Contracting officers may not avoid application of the Construction Wage Rate Requirements statute by splitting individual tasks between orders or contracts.
19. The 222.404 section heading is revised to read as follows:
222.404 Construction Wage Rate Requirements statute wage determinations.
* * * * *
20. Section 222.406-1 is amended by revising paragraph (b)(1)(A)(1), and in paragraph (b)(1)(A)(2) by removing the word ``Act'' and adding ``statute'' in its place.
The revision reads as follows:
222.406-1 Policy.
* * * * *
(b) * * *
(1) * * *
(A) * * *
(1) Construction Wage Rate Requirements statute.
* * * * *
222.406-8 [Amended]
21. Section 222.406-8 is amended in paragraph (c)(4)(A) introductory text by removing ``Contract Work Hours and Safety Standards Act (CWHSSA)'' and adding ``Contract Work Hours and Safety Standards (CWHSS) statute'' in its place.
222-406-9 [Amended]
22. Section 222.406-9 is amended in paragraph (a) by removing ``Davis-Bacon or CWHSSA'' and adding ``Construction Wage Rate Requirements or CWHSS statute'' in its place.
23. Section 222.406-13 is amended--
a. In the introductory text by removing ``Davis-Bacon Act and the CWHSSA'' and adding ``Construction Wage Rate Requirements statute and the CWSS statute'' in its place;
b. By revising paragraphs (7)(i) and (ii) and (8)(i) and (ii);
c. In paragraph (9) introductory text by removing ``CWHSSA'' and adding ``CWSS statute'' in its place;
d. In paragraph (9)(i), by adding ``; and'' to the end; and
e. By revising paragraphs (10)(i) and (ii).
The revisions read as follows:
222.406-13 Semiannual enforcement reports.
* * * * *
(7) * * *
(i) Construction Wage Rate Requirements statute; and
(ii) CWSS statute;
(8) * * *
(i) Construction Wage Rate Requirements statute; and
(ii) CWHSS statute;
* * * * *
(10) * * *
(i) Construction Wage Rate Requirements statute;
(ii) CWSS statute;
* * * * *
Subpart 222.10--Service Contract Labor Standards
24. The subpart 222.10 heading is revised as set forth above.
Subpart 222.14--Employment of Workers with Disabilites
25. The subpart 222.14 heading is revised to read as set forth above.
PART 225--FOREIGN ACQUISITION
225.003 [Amended]
26. Section 225.003 is amended in paragraphs (4) and (11) by removing ``Act'' each time it appears.
Subpart 225.1--Buy American--Supplies
27. The subpart 225.1 is revised to read as set forth above.
225.103 [Amended]
28a. Section 225.103 is amended--
a. In paragraph (a)(i)(B) by removing ``Buy American Act'' and adding ``Buy American statute'' in its place; and
b. In paragraph (a)(ii)(A) introductory text by removing ``Subpart 225.5'' and adding ``subpart 225.5'' in its place and by removing ``Buy American Act'' and adding ``Buy American statute'' in its place.
Subpart 225.2--Buy American--Construction Materials
28b. The subpart 225.2 heading is revised to read as set forth above.
225.502 [Amended]
29. Section 225.502 is amended--
a. In paragraphs (c) introductory text and (c)(iii)(C), by removing ``Buy American Act'' and adding ``Buy American statute'' in its place;
b. In paragraph (c)(i)(A), by removing ``Buy American Act'' and ``Buy American Act or Balance of Payments Program'' and adding ``Buy American statute'' and ``Buy American or Balance of Payments Program'', respectively, in its place; and
c. In paragraphs (c)(i)(B), (c)(ii)(C), (c)(ii)(D), and (c)(iii)(A), by removing ``Act''.
225.872-1 [Amended]
30. Section 225.872-1 is amended in paragraphs (a) introductory text and (b) introductory text by removing ``Buy American Act'' and adding ``Buy American statute'' in its place.
225.872-4 [Amended]
31. Section 225.872-4 is amended by removing ``Buy American Act'' and adding ``Buy American statute'' in its place.
225.1101 [Amended]
32. Section 225.1101 is amended--
a. In paragraphs (1)(i), (2)(i) introductory text, (2)(i)(D)(2), (3)(i), (3)(iii), (10)(i), (11)(i) introductory text, and (11)(iii), by removing ``Act'' each time it appears; and
b. In paragraph (2)(i)(C), removing ``Act'' and adding ``statute'' in its place.
225.7000 [Amended]
33. Section 225.7000 is amended in paragraph (b) by removing ``Buy American Act'' and adding ``Buy American statute'' in its place.
225.7017-3 [Amended]
34. Section 225.7017-3 is amended in paragraph (a) by removing ``Buy American Act'' and adding ``Buy American statute'' in its place.
PART 233--PROTESTS, DISPUTES, AND APPEALS
35. The authority citation for 48 CFR part 233 is revised to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
233.204-70 [Amended]
36. Section 233.204-70 is amended by removing ``the Contract Disputes Act of 1978'' and adding ``41 U.S.C. chapter 71 (Contract Disputes)'' in its place.
PART 243--CONTRACT MODIFICATIONS
37. Section 243.204-71 is amended in paragraph (c) in the first sentence by removing ``the Contract Disputes Act of 1978 (41 U.S.C. 7103)'' and adding ``41 U.S.C. 7103, Disputes'' in its place, and in the second sentence, removing ``Contract Disputes Act'' and adding ``Contract Disputes statute'' in its place and removing ``Subpart'' and adding ``subpart'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.204-7007 [Amended]
38. Section 252.204-7007 is amended by removing the clause date ``(SEP 2011)'' and adding ``(JUN 2012)'' in its place and in paragraphs (d)(2)(ii) and (d)(2)(vi) by removing ``Act''.
252.212-7001 [Amended]
39. Section 252.212-7001 is amended by--
a. Removing the clause date ``(SEP 2011)'' and adding ``(JUN 2012)'' in its place;
b. In paragraphs (b)(4), (b)(22), and (c)(4), removing ``(SEP 2011)'' and adding ``(JUN 2012)'' in its place;
c. In paragraphs (b)(6)(i) by removing ``Act'' and by removing ``(OCT 2011)'' and adding ``(JUN 2012)'' in its place;
d. In paragraph (b)(8) by removing ``(JAN 2011)'' and adding ``(JUN 2012)'' in its place; and
e. In paragraph (b)(13)(i) by removing ``(MAY 2012)'' and adding ``(JUN 2012)'' in its place.
f. In paragraph (b)(16)(i) by removing ``(MAY 2012)'' and adding ``(JUN 2012)'' in its place; and
g. In paragraphs (b)(16)(ii) through (iv) by removing ``(OCT 2011)'' and adding ``(JUN 2012)'' in its place;
h. In paragraphs (b)(16)(v) and (vi), by removing ``(MAY 2012)'' and adding ``(JUN 2012)'' in its place; and
i. In paragraphs (b)(18) and (c)(1), removing ``(AUG 2011)'' and adding ``(JUN 2012)'' in its place.
252.212-7002 [Amended]
40. Section 252.212-7002 is amended by removing the clause date ``(JUN 2011)'' and adding ``(JUN 2012)'' in its place and in the definition ``Nontraditional defense contractor'', paragraph (1), removing ``Section 26 of the Office of Federal Procurement Policy Act (41 U.S.C. section 1502)'' and adding ``41 U.S.C. section 1502'' in its place.
252.217-7002 [Amended]
41. Section 252.217-7002 is amended by removing the clause date ``(DEC 1991)'' and adding ``(JUN 2012)'' in its place and in paragraph (a), removing ``Section 201(c) of the Federal Property and Administrative Services Act of 1949, 63 Stat. 384 (40 U.S.C. 481(c))'' and adding ``40 U.S.C. 503'' in its place.
252.219-7003 [Amended]
42. Section 252.219-7003 is amended--
a. By removing the clause date ``(SEP 2011)'' and adding ``(JUN 2012)'' in its place;
b. In paragraph (e) introductory text by removing ``Section 831'' and adding ``section 831'' in its place; and
c. In paragraph (e)(1), by removing ``handicapped'' and adding ``disabled'' in its place.
43. Section 252.225-7000 is amended:
a. By revising the section heading;
b. By removing ``Act'' from the provision title;
c. By removing the clause date ``(DEC 2009)'' and adding ``(JUN 2012)'' in its place;
d. In paragraph (b)(2) by removing ``Act'' and adding'' statute'' in its place; and
0
e. In paragraph (c)(1) introductory text by removing ``Act''.
The revision reads as follows:
252.225-7000 Buy American Statute--Balance of Payments Program Certificate.
* * * * *
252.225-7001 [Amended]
44. Section 252.225-7001 is amended--
a. By revising the section heading;
b. By removing ``Act'' from the provision title;
c. By removing the clause date ``(OCT 2011)'' and adding ``(JUN 2012)'' in its place;
d. In paragraph (a), in the definition of ``Commercially available off-the-shelf (COTS) item'', paragraph (ii), by removing ``section 3 of the Shipping Act of 1984 (46 U.S.C. 40102)'' and adding ``46 U.S.C. 40102(4)'' in its place;
d. In paragraph (a), in the definition of ``Domestic end product'', paragraph (ii)(A)(2), by removing ``Act'' and adding ``statute'' in its place;
e. In paragraph (b) in the first sentence, by removing ``the Buy American Act (41 U.S.C chapter 83)'' and adding ``, Buy American'' in its place and in the second sentence, removing ``Act'' and adding ``statute'' in its place; and
f. In paragraph (c), by removing ``Act''.
252.225-7009 [Amended]
45. Section 252.225-7009 is amended by removing the clause date ``(JAN 2011)'' and adding ``(JUN 2012)'' in its place; and in paragraph (a)(4)(ii), removing ``section 3 of the Shipping Act of 1984 (46 U.S.C. App 1702)'' and adding ``46 U.S.C. 40102(4)'' in its place.
252.225-7013 [Amended]
46. Section 252.225-7013 is amended--
a. By removing the clause date ``(DEC 2009)'' and adding ``(JUN 2012)'' in its place;
b. In paragraph (a), by removing the numerical designations (1) through (4) from the definitions;
c. In paragraph (a), in the definition ``Eligible product'', paragraph (ii), by removing ``Bahrainian end product or a Moroccan end product, as defined in the Buy American Act'' and adding ``Bahrainian end product, a Moroccan end product, or a Peruvian end product, as defined in the Buy American'' in its place, and in paragraph (iii), by removing ``Act''; and
d. In paragraph (a), in the definition ``Qualifying country'' and ``qualifying country end product'', removing ``Act'' each time it appears.
252.225-7021 [Amended]
47. Section 252.225-7021 is amended by removing the clause date ``(MAY 2012)'' and adding ``(JUN 2012)'' in its place, and in paragraph (a), in the definition ``Commercially available off-the-shelf (COTS) item'', paragraph (ii), by removing ``section 4 of the Shipping Act of 1984 (46 U.S.C. 40102)'' and adding ``46 U.S.C. 40102(4)'' in its place.
252.225-7035 [Amended]
48. Section 252.225-7035 is amended--
a. By revising the section heading;
b. In the clause title by removing ``Act'';
c. By removing the clause date ``(DEC 2010)'' and adding ``(JUN 2012)'' in its place;
d. In paragraphs (a) and (b)(2) by removing ``Act'';
e. In introductory paragraph (c)(1), removing ``Buy American Act'' and adding ``Buy American'' in its place;
f. In Alternate II, by removing the clause date ``(DEC 2010)'' and adding ``(JUN 2012)'' in its place; and in Alternate II, paragraph (b)(2), removing ``Act''; and
g. In Alternate III, removing the clause date ``(DEC 2010)'' and adding ``(JUN 2012)'' in its place; and in Alternate III, paragraphs (a) and (b)(2), removing ``Act''.
The revision reads as follows:
252.225-7035 Buy American--Free Trade Agreements--Balance of Payments Program Certificate.
* * * * *
49. Section 252.225-7036 is amended--
a. By revising the section heading;
b. In the clause title by removing ``Act'';
c. By removing the clause date ``(MAY 2012)'' and adding ``(JUN 2012)'' in its place;
c. In paragraph (a), in the definition ``Commercially available off-the-shelf (COTS) item'', paragraph (ii), by removing ``section 3 of the Shipping Act of 1984 (46 U.S.C. 40102)'' and adding ``46 U.S.C. 40102(4)'' in its place;
d. In paragraph (a), in the definition ``Domestic end product'', paragraph (ii)(A)(2), by removing ``Act'' and adding ``statute'' in its place;
e. In paragraph (c) by removing ``Act''; and
f. In Alternates I, II, and III, by removing the clause date ``(OCT 2011)'' and adding ``(JUN 2012)'' in its place and in paragraph (c), removing ``Act''.
The revision reads as follow:
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments Program.
* * * * *
252.225-7044 [Amended]
50. Section 252.225-7044 is amended by removing the clause date ``(DEC 2010)'' and adding ``(JUN 2012)'' in its place and in paragraph (a), in the definition ``Commercially available off-the-shelf (COTS) item'', paragraph (2), by removing ``section 3 of the Shipping Act of 1984 (46 U.S.C. 40102)'' and adding ``46 U.S.C. 40102(4)'' in its place.
252.227-7037 [Amended]
51. Section 252.225-7037 is amended--
a. By removing the clause date ``(APR 2012)'' and adding ``(JUN 2012)'' in its place;
b. In paragraph (e)(3), by removing ``the Contract Disputes Act of 1978 (41 U.S.C. 7101)'' and adding ``41 U.S.C. 7101, Contract Disputes'' in its place; and
c. In paragraph (g)(2)(iv), removing ``Act'' and adding ``statute'' in its place.
252.227-7038 [Amended]
52. Section 252.225-7038 is amended by removing the clause date ``(DEC 2007)'' and adding ``(JUN 2012)'' in its place and in paragraph (l)(2)(ii), by removing ``Act'' and adding ``statute'' in its place.
252.244-7001 [Amended]
53. Section 252.244-7001 is amended by removing the clause date ``(MAY 2011)'' and adding ``(JUN 2012)'' in its place and in paragraph (c)(17), by removing ``the Anti-Kickback Act'' and adding ``41 U.S.C. chapter 87, Kickbacks'' in its place.
54. In appendix I to chapter 2, section I-101.4 is revised to read as follows:
Appendix I to Chapter 2--Policy and Procedures for the DOD Pilot Mentor-Protege Program
* * * * *
I-101.4 Severely disabled individual.
An individual who has a physical or mental disability which constitutes a substantial handicap to employment and which, in accordance with criteria prescribed by the Committee for Purchase from People Who Are Blind or Severely Disabled established by the first section of the Act of June 25, 1938 (41 U.S.C. 8502), is of such a nature that the individual is otherwise prevented from engaging in normal competitive employment.
* * * * *
[FR Doc. 2012-14259 Filed 6-14-12; 8:45 am]
BILLING CODE 5001-06-P
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[Federal Register Volume 77, Number 116 (Friday, June 15, 2012)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14304]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 216, 225, and 252
RIN 0750-AH28
Defense Federal Acquisition Regulation Supplement; Contractors Performing Private Security Functions (DFARS Case 2011-D023)
AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement those sections of several National Defense Authorization Acts which establish minimum processes and requirements for the selection, accountability, training, equipping, and conduct of personnel performing private security functions under DoD contracts.
DATES: Effective Date: June 15, 2012.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, telephone 571-372-6098.
SUPPLEMENTARY INFORMATION:
I. Background
The interim rule implemented the legislation by establishing (1) Regulations addressing the selection, training, equipping, and conduct of personnel performing private security functions in areas of contingency operations, complex contingency operations, or other military operations or exercises that are designated by the combatant commander, (2) a contract clause, and (3) remedies. DoD published the interim rule in the Federal Register at 76 FR 52133 on August 19, 2011, to implement section 862, as amended, of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008. Section 862 was amended by section 853 of the NDAA for FY 2009 and sections 831 and 832 of the NDAA for FY 2011. In addition, the DoD Instruction addressing private Security Contractors (DoDI 3020.50) was revised on August 1, 2011, and the final rule to implement section 862 of the NDAA for FY 2008, as amended, 32 CFR part 159, Private Security Contractors Operating in Contingency Operations, was published in the Federal Register on August 11, 2011 (76 FR 49651). Public comments on the final rule at 32 CFR part 159 had been solicited by publication of an interim rule on July 17, 2009.
II. Discussion and Analysis of the Public Comments
Three respondents submitted comments on the interim rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
A. Summary of Significant Changes
The following significant changes to the DFARS are being made by this rule:
The definition of ``private security functions'' in the clause at DFARS 225.370-3 was revised to conform to the DoDI, and limit the definition to the specified criteria.
The types of active, non-lethal countermeasures that must be reported when used has been added at DFARS 225.370-4(c)(1)(iv)(E) and 252.225-7039(b)(1)(iv)(E).
The types of Government-authorized investigations with which the contractor is required to cooperate are more narrowly described in order to conform to the limitations in the statute. Changes have been made to DFARS 225.370-4(c)(3) and the clause at DFARS 252.225-7039(b)(3). In addition, a definition of ``full cooperation'' has been added to the clause at DFARS 252.225-7039 to allay concerns about waiver of attorney-client privilege.
The remedies at DFARS 225.370-5(a) have been revised to remove paragraph (a)(4), a discussion of the right to terminate for default, because this right is already covered by the contract termination clauses.
The applicability of the rule (DFARS 225.370-2, 225.370-4(b), and 225.370-6) and references to the title of DoDI 3020.50 at DFARS 225.370-4 and 252.225-7039(b)(2)(i)) have been updated to conform to the revised DoDI 3020.50.
B. Analysis of Public Comments
1. Definition of Private Security Functions
Comment: Two respondents commented that the definition of ``private security functions'' was (a) too broad and (b) inconsistent among the DoDI, the DFARS text, and the clause at DFARS 252.225-7039, Contractors Performing Private Security Functions.
Response: The definition of ``private security functions'' has been revised to limit the definition to the specified criteria all inclusive (rather than just ``including'' the criteria), consistent with the DoDI. The essence of the definition cannot be changed substantially in the DFARS from that in the controlling DoDI.
2. The Contractor's Requirement To Ensure Compliance of Contractor Personnel Performing Private Security Functions
Comment: One respondent stated that the requirement for prime contractors to ensure that personnel performing private security functions comply with numerous administrative and reporting requirements and are briefed on and understand various enumerated laws, regulations, orders, directives, instructions, and rules related to the private security function imposes ``untenable oversight, policing, and enforcement obligations,'' particularly for non-private security function prime contractors that subcontract with a private security function provider. The respondent recommended that the prime contractor's obligation be limited to the administrative functions of passing the requirements on to the private security function provider and conducting audits or other administrative review functions to verify compliance.
Response: No change has been made in the final rule because the law, at section 862(b)(2), as amended, requires the contractor, without regard to whether it is a direct provider of private security functions, to ``ensure'' that its employees and any subcontractors' employees who are responsible for performing private security functions comply with the regulations prescribed under subsection (a) of section 862 implemented as DoDI 3020.50. In addition, the clause at DFARS 252.225-7039(b)(1), requires DoD to identify the applicable private security functions in the contract and make available to the contractor the relevant orders, directives, and instructions.
3. Contractors' Obligation To Cooperate With Government investigations
Comment: One respondent noted that DFARS 225.370-4(c)(3) imposes on contractors the obligation to cooperate with any Government-authorized investigation ``by providing access to employees performing private security functions and relevant information in the possession of the contractor,'' but fails to provide any explanation of the scope and limitations on this requirement. The respondent recommended that the final rule define the contractor's obligation to cooperate, as in the mandatory disclosure provisions of FAR 52.203-13, Contractor Code of Business Ethics and Conduct, by specifying that such cooperation does not require the contractor to waive attorney-client privilege or the protections afforded by the attorney work-product doctrine.
Response: The final rule has been amended to more clearly define the scope and limitations of the contractor's obligation to cooperate with Government investigations. The revised text reflects the limitations on the investigations specifically addressed by the statute, as amended (see DFARS 225.370-4(c)(3) and 252.225-7039(b)(3)). The limitation on information to that in the contractor's possession regarding the incident concerned was in the interim rule. Additionally, the final rule requires the contractor to provide ``full cooperation'' with any Government-authorized investigation. In addition, the definition of ``full cooperation'' included in the clause reflects the mandatory disclosure provisions of FAR 52.203-13, Contractor Code of Business Ethics and Conduct, with minor edits, as recommended by the respondent.
4. Removal of Personnel for Failure To Comply With ``Applicable Requirements''
Comment: One respondent stated that the interim rule, at DFARS 225.370-5(a)(1), grants the Government the very broad power to direct a contractor to remove any personnel at its own expense if the personnel fail to comply with or violate applicable requirements. The respondent believed that it is unclear whether the ``applicable requirements'' are solely limited to those spelled out in the interim rule or if they include additional requirements not identified in the interim rule.
Response: No change has been made in the final rule because the applicable requirements for contracts performed outside the United Sates have been clearly defined in DFARS subpart 225.3 and paragraph (b) of the clause at DFARS 252.225-7039, Contractors Performing Private Security Functions. As noted in the response to comment category B.2 above, relevant orders, directives, and instructions must be made available to the contractor in a single location, including an internet Web site (see section 862(a)(3) of the statute, as amended), and they must be updated as they change, e.g., a change in guidance from a geographic combatant commander.
5. Award Fee Reduction or Denial for Failure To Comply With Private Security Functions Requirements
Comment: One respondent was concerned with the implementation of section 862(d), as amended. The respondent concluded that the DFARS interim rule went beyond the requirements of the statute ``by requiring the contracting officer to include this evaluation requirement in an award-fee plan. This subpart then provides the contracting officer the flexibility to determine whether to reduce, deny, or recover all or part of award fees.''
Response: No change has been made in the final rule in response to this comment. FAR 16.401(e)(2) states that the determination of the amount of award fee and the methodology for determining the award fee are unilateral decisions made solely at the discretion of the Government. In addition, FAR 16.401(e)(3) requires that all contracts providing for award fees must be supported by an award-fee plan that establishes the procedures for evaluating award fee and an award-fee board for conducting the award-fee evaluation. The use of an award-fee type contract provides the Government the maximum, subjective flexibility in the determination of the factors that will be considered, i.e., the award-fee plan, and the amount of award fee granted in a performance period. The statute requires that an additional factor, i.e., the failure of a contractor to comply with contractual requirements pertaining to the performance of private security functions, must always be a consideration for award fees on any award-fee contract calling for performance in the applicable areas.
6. Applicability
Comments: One respondent submitted two comments on the applicability of the interim rule. First, the respondent stated that the statute limits the regulations to ``combat operations or other significant military operations'' and the interim rule goes beyond that. Second, the respondent noted that the interim rule requires DoD subcontractors for commercial items and commercial components to comply with requirements imposed on private security providers and recommended that the applicability of the DFARS coverage be modified to require coverage only for contracts and subcontracts that provide security as a primary function.
Response: The applicability of the DFARS final rule has been revised, at DFARS 225.370-2, to encompass the categories as specified in the DoDI, except that ``combat operations'' are identified separately from ``contingency operations,'' as specified in the statute. ``Complex contingency operations'' are now identified as ``humanitarian or peacekeeping operations,'' which is a term defined in statute and FAR 2.101. The Secretary of Defense has not formally designated Iraq or Afghanistan as ``combat operations,'' yet these areas are clearly intended to be covered by the regulations for private security functions. Therefore, ``contingency operations'' are covered. Whereas Governmentwide implementation will be restricted to combat operations and other significant military operations, the DoDI requires somewhat broader application for DoD contracts.
Congress did not contemplate limiting applicability of the regulations to only those contractors providing primarily private security functions. To do so would have resulted in anomalies such as sanctions for a private security contractor whose employee wounded or killed a civilian while not sanctioning a contractor providing construction goods or foodstuffs whose personnel providing security wounded or killed a civilian. These requirements are applicable only when the contract or subcontract performance is outside the United States.
7. Reporting Requirements
Comment: One respondent noted a number of perceived shortcomings in the reporting requirements at DFARS 225.370-4(c)(1)(iv). Specifically, the respondent was concerned that the requirement to report any property destruction could overwhelm industry and Government employees alike with reports of incidental and de minimis damage to property. The respondent was concerned that the requirement to report incidents in which a firearm is discharged would include planned firearm discharges occurring during training and maintenance. In addition, the respondent requested that the DFARS include examples of active, non-lethal countermeasures.
Response: The statute requires contractors, at section 862(b)(2)(A)(iv), to report incidents in which (1) A weapon is discharged by personnel performing private security functions; (2) personnel performing private security functions are killed or injured; or (3) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel. The second comment resulted in the addition of a listing of active, non-lethal countermeasures in both the DFARS text see DFARS 225.370-4(c)(1)(iv)(E) and the clause at 252.225-7039.
8. Statutory Remedies Do Not Include Contract Termination
Comment: One respondent stated that the legislation does not allow the Government to terminate a contract for default in the case of noncompliance.
Response: The Government has the right to terminate a contract for default pursuant to one of the termination clauses at FAR 52.249-6 (cost-reimbursement), -8 (fixed-price supply and service), -10 (construction), or -11 (personal services) that is included in every contract, as applicable. DoD does not acquire new or additional termination-for-default rights by including such coverage in the clause at DFARS 252.225-7039. Therefore, the final rule has removed the termination language from DFARS 225.370-5 and the clause at DFARS 252.225-7039.
While the statute does not specifically list termination of a contract for default when a contractor's failure to comply is severe, prolonged, or repeated, it does provide that the contractor must be referred to the agency suspension or debarment official and that the failure may be a cause for suspension or debarment of the contractor. Once a contractor appears on the Excluded Parties List System (FAR 9.404), all Government agencies are prohibited from awarding contracts or consenting to subcontracts with the contractor, unless there is an agency head determination to do so (FAR 9.405(a)).
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:
DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 862 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008, as amended by section 853 of the NDAA for FY 2009 and sections 831 and 832 of the NDAA for FY 2011. The final rule has been updated to conform with the governmentwide regulation at 32 CFR part 159, entitled ``Private Security Contractors Operating in Contingency Operations.'' In addition, this final rule implements DoDI 3020.50, ``Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises,'' which provides procedures for personnel performing private security functions for DoD. This final rule impacts only private security contractors performing outside the United States in areas of combat operations and other significant military operations designated by the Secretary of Defense, contingency operations, or other military operations designated by the combatant commanders. DoD does not expect this final 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 it impacts only private security contractors performing outside the United States.
In FY 2010, DoD awarded 1,839 contracts for performance in Iraq and Afghanistan. Of this total, 361, or 20 percent, were awarded to small businesses. Firms performing private security functions in these areas were already required to report the occurrence of incidences such as those listed in the clause at DFARS 252.225-7039, Contractors Performing Private Security Functions, but there was no consistency in the manner of reporting or the individual to whom the report was to be made. This DFARS final rule provides this consistency and clarity and, in that sense, serves to relieve the burdens on small businesses.
No comments were received from the Chief Counsel for Advocacy of the Small Business Administration in response to the rule.
The rule does not duplicate, overlap, or conflict with any other Federal rules. No alternatives have been identified that accomplish the stated objectives of the applicable statutes.
V. Paperwork Reduction Act
This rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). The rule affects the certification and information collection requirements in the provisions at DFARS 225.7402-3, currently approved under OMB Control Number 0704-0460, titled ``Synchronized Predeployment and Operational Tracker (SPOT) System,'' effective through March 31, 2013. No impact is anticipated, however, because DoD contractors operating in areas of combat operations, contingency operations, or other military operations or exercises are currently required to use SPOT for registering personnel and weapons, as well as armored vehicles, helicopters, and other military vehicles operated by personnel performing private security functions, and to report the incidents addressed in the clause at DFARS 252.225-7039.
List of Subjects in 48 CFR Parts 216, 225, and 252
Foreign currencies, Government procurement, Reporting and recordkeeping requirements.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Accordingly, the interim rule amending 48 CFR parts 216, 225, and 252, which was published at 76 FR 52133 on August 19, 2011, is adopted as a final rule with the following changes:
1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
2. Sections 225.370-2 and 225.370-3 are revised to read as follows:
225.370-2 Applicability.
This section applies to acquisitions for supplies and services that require the performance of private security functions outside the United States in areas of--
(a) Combat and other significant military operations designated by the Secretary of Defense;
(b) Contingency operations (see FAR 2.101);
(c) Humanitarian or peacekeeping operations; or
(d) Other military operations or exercises designated by the combatant commander.
225.370-3 Definitions.
As used in this section--
Full cooperation and private security functions are defined in the clause at 252.225-7039, Contractors Performing Private Security Functions.
3. Section 225.370-4 is amended--
a. By revising paragraphs (a) and (b);
b. In paragraph (c)(1) introductory text by removing ``Ensure that all employees'' and adding ``Ensure that the contractor and all employees'' in its place;
c. By revising paragraph (c)(1)(iv)(E);
d. In paragraph (c)(2) introductory text by removing ``Ensure that all employees'' and adding ``Ensure that the contractor and all employees'' in its place; and
e. By revising paragraph (c)(3).
The revisions read as follows:
225.370-4 Policy.
(a) The policy, responsibilities, procedures, accountability, training, equipping, and conduct of personnel performing private security functions in designated areas are addressed in Department of Defense Instruction (DoDI) 3020.50, Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises, at http://www.dtic.mil/whs/directives/corres/pdf/302050p.pdf.
(b) The requirements of this section apply to contractors that employ private security contractors outside the United States in areas of combat and other significant military operations designated by the Secretary of Defense, contingency operations, humanitarian or peacekeeping operations, or other military operations or exercises designated by the combatant commander, whether the contract is for the performance of private security functions or other supplies or services.
(c) * * *
(1) * * *
(iv) * * *
(E) Active, non-lethal countermeasures (other than the discharge of a weapon, including laser optical distracters, acoustic hailing devices, electromuscular TASER guns, blunt-trauma devices like rubber balls and sponge grenades, and a variety of other riot control agents and delivery systems) are employed by personnel performing private security functions in response to a perceived immediate threat;
* * * * *
(3) Provide full cooperation with any Government-authorized investigation into incidents reported pursuant to paragraph (b)(1)(iv) of the clause at 252.225-7039, Contractors Performing Private Security Functions, and incidents of alleged misconduct by personnel performing private security functions by providing access to employees performing private security functions and relevant information in the possession of the contractor.
225.370-5 [Amended]
4. Section 225.370-5 is amended--
a. In paragraph (a)(2), by adding ``and'' at the end of the sentence;
b. In paragraph (a)(3), by removing ``paid for such period; and'' and adding ``paid for such period (see 216.405-2-71).'' in its place;
c. By removing paragraph (a)(4); and
d. In paragraph (b), by removing ``significant, or repeated'' and adding ``significant, severe, prolonged, or repeated'' in its place.
5. Section 225.370-6 is revised to read as follows:
225.370-6 Contract clause.
Use the clause at 252.225-7039, Contractors Performing Private Security Functions, in all solicitations and contracts to be performed outside the United States in areas of--
(a) Combat and other significant military operations designated by the Secretary of Defense;
(b) Contingency operations (see FAR 2.101);
(c) Humanitarian or peacekeeping operations; or
(d) Other military operations or exercises designated by the combatant commander.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 252.225-7039 is amended--
a. By removing the clause date and adding ``(JUN 2012)'' in its place;
b. By revising paragraph (a);
c. In introductory sentence (b)(1), by removing ``Ensure that all employees'' and adding ``Ensure that the Contractor and all employees'' in its place;
d. In paragraph (b)(1)(i), by removing ``Personnel Identity Verification of Contractor Personnel'' and adding ``Personal Identity Verification of Contractor Personnel'' in its place;
e. By revising paragraph (b)(1)(iv)(E);
f. In introductory sentence (b)(2), by removing ``Ensure that all employees'' and adding ``Ensure that the Contractor and all employees'' in its place;
g. In paragraph (b)(2)(i), by removing ``Combat Operations, or Other Significant Military Operations'' and adding ``Humanitarian or Peace Operations, or Other Military Operations or Exercises'' in its place;
h. By revising paragraph (b)(3);
i. In paragraph (c)(2), by adding ``and'' at the end of the sentence;
j. In paragraph (c)(3), by removing ``paid for such period; and'' and adding ``paid for such period.'' in its place;
k. By revising paragraph (c)(4); and
l. By revising paragraph (e).
The revisions read as follows:
252.225-7039 Contractors Performing Private Security Functions.
* * * * *
(a) Definitions.
Full cooperation--
(i) Means disclosure to the Government of the information sufficient to identify the nature and extent of the incident and the individuals responsible for the conduct. It includes providing timely and complete response to Government auditors' and investigators' requests for documents and access to employees with information;
(ii) Does not foreclose any Contractor rights arising in law, the FAR, the DFARS, or the terms of the contract. It does not require--
(A) The Contractor to waive its attorney-client privilege or the protections afforded by the attorney work product doctrine; or
(B) Any officer, director, owner, or employee of the Contractor, including a sole proprietor, to waive his or her attorney-client privilege or Fifth Amendment rights; and
(C) Does not restrict the Contractor from--
(1) Conducting an internal investigation; or
(2) Defending a proceeding or dispute arising under the contract or related to a potential or disclosed violation.
Private security functions means the following activities engaged in by a contractor:
(i) Guarding of personnel, facilities, designated sites, or property of a Federal agency, the contractor or subcontractor, or a third party.
(ii) Any other activity for which personnel are required to carry weapons in the performance of their duties.
(b) * * *
(1) * * *
(iv) * * *
(E) Active, non-lethal countermeasures (other than the discharge of a weapon, including laser optical distracters, acoustic hailing devices, electromuscular TASER guns, blunt-trauma devices like rubber balls and sponge grenades, and a variety of other riot control agents and delivery systems) are employed by personnel performing private security functions in response to a perceived immediate threat;
* * * * *
(3) Provide full cooperation with any Government-authorized investigation into incidents reported pursuant to paragraph (b)(1)(iv) of this clause and incidents of alleged misconduct by personnel performing private security functions by providing access to employees performing private security functions and relevant information in the possession of the Contractor regarding the incident concerned.
(c) * * *
(4) If the performance failures are significant, severe, prolonged, or repeated, the contracting officer shall refer the contractor to the appropriate suspension and debarment official.
* * * * *
(e) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (e), in all subcontracts that will be performed outside the United States in areas of combat and other significant military operations designated by the Secretary of Defense, contingency operations, humanitarian or peacekeeping operations, or other military operations or exercises designated by the Combatant Commander.
[FR Doc. 2012-14304 Filed 6-14-12; 8:45 am]
BILLING CODE 5001-06-P
