[Federal Register Volume 62, Number 12 (Friday, January 17, 1997)]
[Rules and Regulations]
[Pages 2612-2615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1036]


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DEPARTMENT OF DEFENSE
48 CFR Parts 215, 219, 225, 226, 227, 233, and 252

[DFARS Case 96-D306]


Defense Federal Acquisition Regulation Supplement; Elimination of 
Certifications

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: The Director of Defense Procurement is amending the Defense 
Federal Acquisition Regulation Supplement (DFARS) to remove particular 
certification requirements for contractors and offerors that are not 
specifically imposed by statute.

EFFECTIVE DATE: January 17, 1997.

FOR FURTHER INFORMATION CONTACT:
Mr. Michael Mutty, PDUSD (A&T)DP(DAR), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062, Telephone (703) 602-0131. Telefax 
(703) 602-0350. Please cite DFARS Case 96-D306 in all correspondence 
related to this case.

SUPPLEMENTARY INFORMATION: 

A. Background

    This final rule amends DFARS Parts 215, 219, 225, 226, 227, 233, 
and 252 to remove particular certification requirements for contractors 
and offerors. The rule implements Section 4301(b) of the Clinger-Cohen 
Act of 1996 (Pub. L. 104-106). Section 4301(b) requires the head of 
each executive agency, that has agency procurement regulations 
containing one or more certification requirements for contractors and 
offerors that are not specifically imposed by statute, to issue for 
public comment a proposal to remove from the agency regulations those 
certification requirements that are not specifically imposed by 
statute. The head of the agency can omit such a certification from its 
proposal only if: (1) the senior procurement executive for the 
executive agency provides the head of the executive agency with a 
written justification for the requirement and a determination that 
there is no less burdensome means for administering and enforcing the 
particular regulation that contains the certification requirement; and 
(2) the head of the executive agency approves in writing the retention 
of such certification requirement. A proposed rule was published in the 
Federal Register on September 6, 1996 (61 FR 47101). Eighteen comments 
were received from four respondents. All comments were considered in 
the development of the final rule.
    In response to the public comments, DFARS 215.873(d) was revised to 
replace ``furnishes any certification'' with ``identifies any such 
data'' to avoid any potential misinterpretation that a certification 
not specifically required by statute or regulation is permitted. 
Additionally, the language at DFARS 252.236-7006(c) was revised to more 
clearly define the requirement for offerors to indicate that proposed 
items, subject to cost limitations, include an appropriate 
apportionment of all costs, direct and indirect, overhead, and profit.
    Several certifications for contractors and offerors associated with 
Foreign Contracting had been proposed for elimination. However, upon 
consideration of public comments received in response to the proposed 
rule, these certifications are being proposed for retention, because 
the self-policing discipline of a certification requirement is 
important to enforcing a national policy grounded in vital economic and 
security interests. The Government believes that elimination of these 
certification requirements would have created a need for offerors to 
submit more detailed information regarding the origin of offered 
products. Therefore, the certification is viewed as a less burdensome 
alternative. Interested parties are invited to submit comments on the 
retention of these certification requirements. Please cite Holding File 
96-708-02, Regulatory Reform--Certifications DFARS, in correspondence. 
Comments should be limited to the retention of the following 
certifications for contractors and offerors that were proposed for 
elimination but have been retained as a result of the analysis of 
public comments:

----------------------------------------------------------------------------------------------------------------
                                                Clause/provision                                                
                  DFARS Cite                          No.                              Title                    
----------------------------------------------------------------------------------------------------------------
225.109......................................       252.225-7000  Buy American Act--Balance of Payments Program 
                                                                   Certificate.                                 
225.408......................................       252.225-7006  Buy American Act--Trade Agreements--Balance of
                                                                   Payments Program Certificate.                
225.408......................................       252.225-7035  Buy American Act--North American Free Trade   
                                                                   Agreement Implementation Act--Balance of     
                                                                   Payments Program Certificate.                
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act

    This final rule is expected to have a significant beneficial 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 reduces 
the number of certifications that offerors and contractors must provide 
to the Government. A Final Regulatory Flexibility Analysis (FRFA) has 
been prepared and may be obtained from the address specified herein. A 
copy of the FRFA has been submitted to the Chief Council for Advocacy 
of the Small Business Administration. The analysis is summarized as 
follows:

[[Page 2613]]

    The objective and legal basis for this rule is Section 4301(b) of 
the Clinger-Cohen Act of 1996 (Pub. L. 104-106). The rule implements 
Section 4301(b) by amending the DFARS to remove certain certification 
requirements for contractors and offerors that are not specifically 
imposed by statute. There were no public comments received in response 
to the initial regulatory flexibility analysis. Certifications relating 
to the Buy American Act, Trade Agreements Act, and North American Free 
Trade Agreement Implementation Act were originally proposed for 
elimination. However, upon consideration of public comments received in 
response to the proposed rule, these certifications were retained. The 
rule will apply to all large and small entities that are interested in 
receiving Government contracts. The number of small entities to which 
the rule will apply is estimated to be 20,378. This rule does not 
impose any reporting, recordkeeping, or other compliance requirements. 
Flexible compliance was considered but determined inappropriate because 
the rule eliminates, rather than imposes, certification burdens on 
large and small entities.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the final rule 
does not impose any new recordkeeping, information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public 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 215, 219, 225, 226, 227, 233, and 252

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

    Therefore, 48 CFR Parts 215, 219, 225, 226, 227, 233, and 252 are 
amended as follows:
    1. The authority citation for 48 CFR parts 215, 219, 225, 226, 227, 
233, and 252 continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 215--CONTRACTING BY NEGOTIATION

    2. Section 215.873 is amended by revising paragraph (d) to read as 
follows:


215.873  Estimated data prices.

* * * * *
    (d) The contracting officer shall ensure that the contract does not 
include a requirement for data that the contractor has delivered or is 
obligated to deliver to the Government under another contract or 
subcontract, and that the successful offeror identifies any such data 
required by the solicitation. However, where duplicate data are 
desired, the contract price shall include the costs of duplication, but 
not of preparation, of such data.

PART 219--SMALL BUSINESS PROGRAMS

    3. Section 219.301 is amended by revising paragraph (b) to read as 
follows:


219.301  Representation by the offeror.

* * * * *
    (b) The contracting officer shall protest an offeror's 
representation that it is a small disadvantaged business concern when--
    (i) There is conflicting evidence;
    (ii) The offeror represents that the Small Business Administration 
previously determined the concern to be non-disadvantaged; or
    (iii) The offeror represents its ownership as other than Black 
American, Hispanic American, Native American (including Indian tribes 
and Native Hawaiian organizations), Asian Pacific American, or 
subcontinent Asian American, unless the offeror represents that--
    (A) It currently is in the Section 8(a) program; or
    (B) Within the 6 months preceding submission of its offer, the 
offeror was determined by the Small Business Administration to be 
socially and economically disadvantaged, and no circumstances have 
changed to vary that determination.
    4. Section 219.302-70 is amended by revising paragraphs (d) and (e) 
to read as follows:


Sec. 219.302-70  Protesting a small disadvantaged business 
representation.

* * * * *
    (d) Upon receipt of a timely protest, the contracting officer shall 
withhold award and forward the protest to the SBA Office of Program 
Eligibility, Office of Minority Small Business and Capitol Ownership 
Development, 409 3rd Street, SW., Washington, DC 20416. Send SBA--
    (1) The protest;
    (2) The date the protest was received and a determination of 
timeliness; and
    (3) The date of bid opening or date on which notification of 
apparent successful offeror was sent to unsuccessful offerors.
    (e) Do not withhold award when--
    (1) The contracting officer makes a written determination that 
award must be made to protect the public interest; or
    (2) The offeror represents that, within the 6 months preceding 
submission of its offer, the SBA has determined the concern to be 
socially and economically disadvantaged, and no circumstances have 
changed to vary that determination.
* * * * *

PART 225--FOREIGN ACQUISITION

    5. Section 225.603 is amended by revising paragraph (1)(iii)(C)(2) 
to read as follows:


Sec. 225.603  Procedures.

    (1) * * *
    (iii) * * *
    (C) * * *
    (2) The supplies so purchased will be delivered to the Government 
or incorporated in Government-owned property or in an end product to be 
furnished to the Government, and the duty will be paid if such supplies 
or any portion are used for other than the performance of the 
Government contract or disposed of other than for the benefit of the 
Government in accordance with the contract terms; and
* * * * *

PART 226--OTHER SOCIOECONOMIC PROGRAMS

    6. Section 226.7005 is amended by revising the introductory text of 
paragraph (b) and paragraph (b)(1) to read as follows:


Sec. 226.7005  Eligibility as an HBCU or MI.

* * * * *
    (b) The contracting officer shall accept an offeror's HBCU or MI 
status under the provision at 252.226-7001, unless--
    (1) Another offeror challenges the status; or
* * * * *


Sec. 226.7008  [Amended]

    7. Section 226.7008 is amended in paragraph (b) by removing the 
word ``Certification'' and inserting the word ``Status'' in its place.

PART 227--PATENTS, DATA, AND COPYRIGHTS


Sec. 227.7004  [Amended]

    8. Section 227.7004 is amended in paragraph (a)(6) by removing the 
word ``certification'' and inserting the word ``declaration'' in its 
place.


227.7103-6  [Amended]

    9. Section 227.7103-6 is amended in paragraph (e)(3) by removing 
the word

[[Page 2614]]

``Certification'' and inserting the word ``Declaration'' in its place.


227.7104  [Amended]

    10. Section 227.7104 is amended in paragraph (e)(5) by removing the 
word ``Certification'' and inserting the word ``Declaration'' in its 
place.

PART 233--PROTESTS, DISPUTES, AND APPEALS


Subpart 233.70  [Removed]

    11. Subpart 233.70 is removed.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.212-7001   [Amended]

    12. Section 252.212-7001 is amended by revising the clause date to 
read ``(JAN 1997)''; and in paragraph (b) by removing the entry 
``252.233-7000 Certification of Claims and Requests for Adjustment or 
Relief (10 U.S.C. 2410)''.
    13. Section 252.216-7000 is amended by revising the clause date to 
read (``JAN 1997)''; by removing paragraph (c)(4); and by revising 
paragraph (e)(1) to read as follows:


252.216-7000  Economic Price Adjustment--Basic Steel, Aluminum, Brass, 
Bronze, or Copper Mill Products.

* * * * *
    (e) * * *

    (1) The Contractor may, after that time, deliver any items that 
were completed or in the process of manufacture at the time of 
receipt of the cancellation notice, provided the Contractor notifies 
the Contracting Officer of such items within 10 days after the 
Contractor receives the cancellation notice.
* * * * *


252.216-7001  [Amended]

    14. Section 252.216-7001 is amended by revising the clause date to 
read ``(JAN 1997)''; in the introductory text of paragraph (f)(2) by 
removing the words ``and certifying''; and in the first sentence of 
paragraph (f)(4) by removing the word ``certified''.
    15. Section 252.217-7005 is amended by revising the clause date to 
read ``(JAN 1997)''; and by revising paragraph (e)(6) to read as 
follows:


252.217-7005  Inspection and Manner of Doing Work.

* * * * *
    (e) * * *

    (6) Furnish the Contracting Officer or designated representative 
with a copy of the ``gas-free'' or ``safe-for-hotwork'' certificate, 
provided by a Marine Chemist or Coast Guard authorized person in 
accordance with Occupational Safety and Health Administration 
regulations (29 CFR 1915.14) before any hot work is done on a tank;
* * * * *
    16. Section 252.219-7000 is amended by revising the clause date to 
read ``(JAN 1997)''; and by revising the introductory text of paragraph 
(c) to read as follows:


252.219-7000  Small Disadvantaged Business Concern Representation (DoD 
Contracts).

* * * * *
    (c) Complete the following--
* * * * *
    17. Section 252.225-7009 is amended by revising the clause date to 
read ``(JAN 1997)''; and by revising paragraphs (i)(9) and (i)(10) to 
read as follows:


252.225-7009  Duty-Free Entry--Qualifying Country End Products and 
Supplies.

* * * * *
    (i) * * *

    (9) List of items purchased;
    (10) An agreement by the Contractor that duty shall be paid by 
the Contractor to the extent that such supplies, or any portion (if 
not scrap or salvage), are diverted to nongovernmental use other 
than as a result of a competitive sale made, directed, or authorized 
by the Contracting Officer;
* * * * *
    18. Section 252.225-7010 is amended by revising the clause date to 
read ``(JAN 1997)''; and by revising paragraph (c)(10) to read as 
follows:


252.225-7010  Duty-Free Entry--Additional Provisions.

* * * * *
    (c) * * *

    (10) An agreement by the Contractor that duty shall be paid by 
the Contractor to the extent that such supplies, or any portion (if 
not scrap or salvage), are diverted to nongovernmental use other 
than as a result of a competitive sale made, directed, or authorized 
by the Contracting Officer.
* * * * *
    19. Section 252.225-7018 is amended by revising the clause date to 
read ``(JAN 1997)''; and by revising paragraph (e) to read as follows:


252.225-7018  Notice of Prohibition of Certain Contracts with Foreign 
Entities for the Conduct of Ballistic Missile Defense RDT&E.

* * * * *
    (e) The offeror (________) is (________) is not a U.S. firm.

(End of provision)

    20.-21. Section 252.225-7037 is amended by revising the clause date 
to read ``(JAN 1997)''; and by revising paragraphs (i)(9) and (i)(10) 
to read as follows:


252.225-7037  Duty-Free Entry--NAFTA Country End Products and Supplies.

* * * * *
    (i) * * *

    (9) List of items purchased;
    (10) An agreement by the Contractor that duty shall be paid by 
the Contractor to the extent that such supplies, or any portion (if 
not scrap or salvage), are diverted to nongovernmental use other 
than as a result of a competitive sale made, directed, or authorized 
by the Contracting Officer; and
* * * * *
    22. Section 252.226-7001 is amended by revising the section title, 
clause title and date, and paragraph (b) to read as follows:


252.226-7001  Historically Black College or University and Minority 
Institution Status.

* * * * *
    HISTORICALLY BLACK COLLEGE OR UNIVERSITY AND MINORITY INSTITUTION 
STATUS (JAN 1997)
* * * * *
    (b) Status.
    If applicable, the offeror shall check the appropriate space 
below:

________A historically black college or university
________A minority institution

(End of provision)

    23. Section 252.227-7036 is revised to read as follows:


252.227-7036  Declaration of Technical Data Conformity.

    As prescribed at 227.7103-6(e)(3) or 227.7104(e)(5), use the 
following clause:

DECLARATION OF TECHNICAL DATA CONFORMITY (JAN 1997)

    All technical data delivered under this contract shall be 
accompanied by the following written declaration: The Contractor, 
____________________, hereby declares that, to the best of its 
knowledge and belief, the technical data delivered herewith under 
Contract No. ____________________ is complete, accurate, and 
complies with all requirements of the contract.

Date-------------------------------------------------------------------

Name and Title of Authorized Official----------------------------------

(End of clause)


252.233-700  [Removed].

    24. Section 252.233-7000 is removed.
    25. Section 252.236-7003 is amended by revising the clause date to 
read ``(JAN 1997)''; and by revising paragraphs (c)(1) and (c)(2) and 
the introductory text of paragraph (c)(3) to read as follows:


252.236-7003  Payment for Mobilization and Preparatory Work.

* * * * *
    (c) * * *
    (1) An account of the Contractor's actual expenditures;
    (2) Supporting documentation, including receipted bills or 
copies of payrolls and freight bills; and
    (3) The Contractor's documentation--
* * * * *

[[Page 2615]]

    26. Section 252.236-7006 is amended by revising the clause date to 
read ``(JAN 1997)''; and by revising paragraph (c) to read as follows:


252.236-7006  Cost Limitation.

* * * * *
    (c) Prices stated in offers for items subject to cost 
limitations shall include an appropriate apportionment of all costs, 
direct and indirect, overhead, and profit.
* * * * *


252.239-7007  [Amended].

    27. Section 252.239-7007 is amended by revising the clause date to 
read ``(JAN 1997)''; and in paragraph (d)(1) by removing the word 
``certified''.


252.247-7001  [Amended].

    28. Section 252.247-7001 is amended by revising the clause date to 
read ``(JAN 1997)''; and in paragraph (g) by removing the word 
``certification'' and inserting the word ``statement'' in its place.

[FR Doc. 97-1036 Filed 1-16-97; 8:45 am]
BILLING CODE 5000-04-M