[Federal Register Volume 62, Number 12 (Friday, January 17, 1997)]
[Rules and Regulations]
[Pages 2616-2617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1039]


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DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252

[DFARS Case 96-D021]


Defense Federal Acquisition Regulation Supplement; Contingent 
Fees--Foreign Military Sales

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: The Director of Defense Procurement has issued an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to conform to changes adopted in the Federal Acquisition Regulation 
(FAR), pertaining to elimination of requirements for Government review 
of a prospective contractor's contingent fee arrangements.

DATES: Effective date: January 17, 1997.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before March 18, 1997, to be 
considered in the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to: 
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD 
(A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-
3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-D021 in 
all correspondence related to this issue.

FOR FURTHER INFORMATION CONTACT:
Ms. Amy Williams, (703) 602-0131.

SUPPLEMENTARY INFORMATION: 

A. Background

    This interim rule amends DFARS 225.73, 252.212-7001, and 252.225-
7027 to conform to the FAR revisions published as Item I of Federal 
Acquisition Circular 90-40 (61 FR 39188, July 26, 1996), which removed 
requirements for prospective contractors to provide certain information 
to the Government regarding contingent fee arrangements. This interim 
rule makes the associated DFARS changes related to contingent fees 
under contracts for foreign military sales.

B. Regulatory Flexibility Act

    This interim rule is not expected 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 
removes requirements for contracting officer review of contingent fee 
arrangements under foreign military sales contracts, but does not 
change the policy pertaining to the allowability of contingent fees 
under these contracts. An Initial Regulatory Flexibility Analysis has, 
therefore, not been prepared. Comments are invited from small 
businesses and other interested parties. Comments from small entities 
concerning the affected DFARS subparts also will be considered in 
accordance with 5 U.S.C. 610. Such comments should be submitted 
separately and should cite DFARS Case 96-D021 in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this interim 
rule does not contain any information collection requirements that 
require approval by 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 conforms the DFARS to changes already adopted in the 
FAR. Federal Acquisition Circular 90-40 (FAR Case 93-009) eliminated 
the clause at FAR 52.203-4, Contingent Fee Representation and 
Agreement; the

[[Page 2617]]

Standard Form 119, Statement of Contingent or Other Fees; and the 
associated requirements in FAR Subpart 3.4 relating to review and 
evaluation of contingent fees. This interim rule makes the associated 
DFARS changes related to contingent fees for foreign military sales. 
Immediate publication of an interim rule is necessary because 
compliance with the existing requirements of DFARS 225.7302 and 
225.7303 is no longer feasible. Comments received in response to the 
publication of this interim rule will be considered in formulating the 
final rule.

List of Subjects in 48 CFR Parts 225 and 252

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

    Therefore, 48 CFR Parts 225 and 252 are amended as follows:
    1. The authority citation for 48 CFR Parts 225 and 252 continues to 
read as follows:

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

PART 225--FOREIGN ACQUISITION


225.7302  [Amended]

    2. Section 225.7302 is amended by removing paragraph (a)(1), and by 
redesignating paragraphs (a)(2) through (a)(5) as paragraphs (a)(1) 
through (a)(4).
    3. Section 225.7303-4 is revised to read as follows:


225.7303-4  Contingent fees.

    (a) Contingent fees are allowable under defense contracts provided 
that the fees are paid to a bona fide employee or a bona fide 
established commercial or selling agency maintained by the prospective 
contractor for the purpose of securing business (see FAR part 31 and 
FAR subpart 3.4). For FMS, it is extremely difficult for DoD to verify 
the services, or the value of the services. Therefore, the cost of 
allowable contingent fees (as defined in FAR subpart 3.4) is limited to 
$50,000.
    (b) Under DoD 5105.38-M, Security Assistance Management Manual, 
Letters of Offer and Acceptance for requirements for the governments of 
Australia, Taiwan, Egypt, Greece, Israel, Japan, Jordan, Republic of 
Korea, Kuwait, Pakistan, Philippines, Saudi Arabia, Turkey, Thailand, 
or Venezuela (Air Force) must provide that all U.S. Government 
contracts resulting from the Letters of Offer prohibit the payment of 
contingent fees unless the payments have been identified and payment 
approved in writing by the foreign customer before contract award. (See 
225.7308(a).)
    4. Section 225.7308 is amended by revising paragraph (a) to read as 
follows:


225.7308  Contract clauses.

    (a) Use the clause at 252.225-7027, Restriction on Contingent Fees 
for Foreign Military Sales, in all solicitations and contracts for 
foreign military sales.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    5. Section 252.212-7001 is amended by revising the clause date to 
read ``(JAN 1997)'', and by removing the entry ``252.225-7027 
Limitation on Sales Commissions and Fees (12 U.S.C. 2779)'' and 
inserting in its place the entry ``252.225-7027 Restriction on 
Contingent Fees for Foreign Military Sales (22 U.S.C. 2779)''.
    6. Section 252.225-7027 is revised to read as follows:


252.225-7027  Restriction on Contingent Fees for Foreign Military 
Sales.

    As prescribed in 225.7308(a), use the following clause. Insert in 
paragraph (b) of the clause the name(s) of any foreign country 
customer(s) listed in 225.7303-4(b).

Restriction on Contingent Fees for Foreign Military Sales (Jan 1997)

    Contingent fees, as defined in the Covenant Against Contingent 
Fees clause of this contract, are not an allowable cost, and the 
contract price (including any subcontracts) shall not include any 
direct or indirect cost of contingent fees for Contractor (or 
subcontractor) sales representatives for solicitation or promotion 
or otherwise to secure the conclusion of the sale of any of the 
supplies or services called for by this contract, unless--
    (a) The amount of contingent fee per foreign military sale does 
not exceed $50,000; and
    (b) For sales to the Government(s) of ____________, the 
contingent fees have been identified and payment approved in writing 
by the named Government(s) before contract award.

(End of clause)

[FR Doc. 97-1039 Filed 1-16-97; 8:45 am]
BILLING CODE 5000-04-M