[Federal Register Volume 67, Number 19 (Tuesday, January 29, 2002)]
[Proposed Rules]
[Pages 4231-4232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2058]


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DEPARTMENT OF DEFENSE

48 CFR Parts 208, 239, 251, and 252

[DFARS Case 2000-D023]


Defense Federal Acquisition Regulation Supplement; Enterprise 
Software Agreements

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to add policy pertaining to the use of 
enterprise software agreements for the acquisition of commercial 
software and software maintenance.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before April 1, 2002, to be considered in 
the formation of the final rule.

ADDRESSES: Respondents may submit comments directly on the World Wide 
Web at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an 
alternative, respondents may 
e-mail comments to: [email protected]. Please cite DFARS Case 2000-D023 
in the subject line of e-mailed comments.
    Respondents that cannot submit comments using either of the above 
methods may submit comments to: Defense Acquisition Regulations 
Council, Attn: Ms. Susan Schneider, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 
Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350. 
Please cite DFARS Case 2000-D023.
    At the end of the comment period, interested parties may view 
public comments on the World Wide Web at http://emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, (703) 602-0326. 
Please cite DFARS Case 2000-D023.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed rule adds a new DFARS Subpart 208.74 to address the 
use of enterprise software agreements for the acquisition of commercial 
software and software maintenance in accordance with the DoD Enterprise 
Software Initiative. This initiative promotes the use of enterprise 
software agreements with contractors that allow DoD to obtain favorable 
terms and pricing for commercial software and related services. 
Associated DFARS changes are made in parts 208, 239, 251, and 252.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    The proposed 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 most 
enterprise software agreements are blanket purchase agreements 
established under Federal Supply Schedules. Establishment of such 
agreements is already permitted by section 8.404(b)(4) of the Federal 
Acquisition Regulation. Therefore, an initial regulatory flexibility 
analysis has not been performed. 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 2000-D023 in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Parts 208, 239, 251, and 252

    Government procurement.

Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
    Therefore, DoD proposes to amend 48 CFR Parts 208, 239, 251, and 
252 as follows:
    1. The authority citation for 48 CFR Parts 208, 239, 251, and 252 
continues to read as follows:

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

PART 208--REQUIRED SOURCES OF SUPPLIES AND SERVICES

    2. Section 208.001 is amended by revising paragraph (a)(1)(v) to 
read as follows:


208.001  Priorities for use of Government supply sources.

    (a)(1)(v) See Subpart 208.70, Coordinated Acquisition, and Subpart 
208.74, Enterprise Software Agreements.
* * * * *
    3. Subpart 208.74 is added to read as follows:
Subpart 208.74--Enterprise Software Agreements
Sec.
208.7400   Scope of subpart.
208.7401   Definitions.
208.7402   General.
208.7403   Acquisition procedures.


208.7400  Scope of subpart.

    This subpart prescribes policy and procedures for acquisition of 
commercial software and software maintenance, including software and 
software maintenance that is acquired--
    (a) As part of a system or system upgrade;
    (b) Under a service contract;
    (c) Under a contract administered by another agency;
    (d) Under an interagency agreement; or
    (e) By a contractor that is authorized to order from a Government 
supply source pursuant to FAR 51.101.


208.7401  Definitions.

    As used in this subpart--
    Enterprise software agreement means a blanket purchase agreement or 
a contract that is used to acquire designated commercial software or 
related services such as software maintenance.
    Enterprise Software Initiative means an initiative led by the DoD 
Chief Information Officer to develop processes for DoD-wide software 
asset management.
    Golden Disk means a purchased license or entitlement to distribute 
an unlimited or bulk number of copies of software throughout DoD.
    Software product manager means the person who manages an enterprise 
software agreement.


208.7402  General.

    Departments and agencies must fulfill requirements for commercial 
software and related services, such as software maintenance, in 
accordance with the DoD Enterprise Software Initiative (ESI). ESI 
promotes the use of enterprise software agreements (ESA) with 
contractors that allow DoD to obtain favorable terms and pricing for 
commercial software and related services.


208.7403  Acquisition procedures.

    (a) Requiring officials must obtain commercial software rights or

[[Page 4232]]

maintenance from available existing DoD inventories (e.g.; Golden Disks 
and DoD-wide software maintenance agreements) before proceeding with an 
acquisition. DoD inventories and other ESI information are listed on 
the ESI website at http://www.don-imit.navy.mil/esi.
    (b) If the required commercial software or related service is not 
in the DoD inventory, or not on an ESA, the contracting officer or 
requiring official may fulfill the requirement by other means. Existing 
ESAs are listed on the ESI website.
    (c) If the commercial software or related service is on an ESA, the 
contracting officer or requiring official must review the terms and 
conditions and prices.
    (d) If an ESA's terms and conditions and prices represent the best 
value to the Government, the contracting officer or the requiring 
official must fulfill the requirement for supplies or services through 
the ESA.
    (e) If existing ESAs do not represent the best value to the 
Government, the software product manager (SPM) must be given an 
opportunity to provide the same or a better value to the Government 
under the ESAs before the contracting officer or requiring official may 
continue with alternate acquisition methods.
    (1) The contracting officer or requiring official must notify the 
SPM of specific concerns about existing ESA terms and conditions or 
prices through the ESI webpage.
    (2) The SPM will consider adjusting the ESA terms and conditions or 
prices to reflect ``most favored customer'' status.
    (i) Within 3 working days, the SPM will--
    (A) Update the ESA;
    (B) Provide an estimated date by which the update will be 
accomplished; or
    (C) Inform the contracting officer or requiring official that no 
change will be made to the ESA.
    (ii) If the SPM informs the contracting officer or requiring 
official that no change will be made to the ESA terms and conditions or 
prices, the contracting officer or requiring official may obtain the 
requirement by other means.
    (iii) If the SPM does not respond within 3 working days or does not 
plan to adjust the ESA within 90 days, the contracting officer or 
requiring official may fulfill the requirement by other means.
    (3) A management official designated by the department or agency 
may waive the requirement to obtain commercial software or related 
services through an ESA after the steps in paragraphs (e)(1) and 
(e)(2)(i) of this section are complete.

PART 239--ACQUISITION OF INFORMATION TECHNOLOGY

    4. Subpart 239.1 is added to read as follows:
Subpart 239.1--General
Sec.
239.101  Policy.


239.101  Policy.

    See Subpart 208.74 when acquiring commercial software or software 
maintenance.

PART 251--USE OF GOVERNMENT SOURCES BY CONTRACTORS

    5. Section 251.102 is amended as follows:
    a. By revising paragraph (f);
    b. In Table 51-1, by revising paragraph 1., and by adding paragraph 
2.c. to read as follows:


251.102  Authorization to use Government supply sources.

* * * * *
    (f) The authorizing agency is also responsible for promptly 
considering requests of the DoD supply source for authority to refuse 
to honor requisitions from a contractor that is indebted to DoD and has 
failed to pay proper invoices in a timely manner.

Table 51-1, Authorization To Purchase From Government Supply Sources

* * * * *
    1. You are hereby authorized to use Government sources in 
performing Contract No. ________ for [insert applicable military 
department or defense agency], as follows: [Insert applicable 
purchasing authority given to the contractor.]
    2. * * *
    c. Enterprise Software Initiative. Place orders in accordance 
with the terms and conditions of the attached Enterprise Software 
Agreement(s), or instructions for obtaining commercial software or 
software maintenance from Enterprise Software Initiative 
inventories, and this authorization. Attach a copy of this 
authorization to the order (unless a copy was previously furnished 
to the Enterprise Software Agreement contractor).
    Insert the following statement in the order:
    This order is placed under written authorization from ________ 
dated ________(*________). In the event of any inconsistency between 
the terms and conditions of this order, and those of the Enterprise 
Software Agreement, the latter will govern.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Section 252.251-7000 is amended as follows:
    a. By revising the clause date and paragraph (a); and
    b. In paragraph (d)(4) in the last sentence by removing ``Such'' 
and adding in its place ``The''.


252.251-7000  Ordering From Government Supply Sources.

* * * * *

Ordering From Government Supply Sources (XXX 2002)

    (a) When placing orders under Federal Supply Schedules, Personal 
Property Rehabilitation Price Schedules, or Enterprise Software 
Agreements, the Contractor shall follow the terms of the applicable 
schedule or agreement and authorization. Include in each order:
    (1) A copy of the authorization (unless a copy was previously 
furnished to the Federal Supply Schedule, Personal Property 
Rehabilitation Price Schedule, or Enterprise Software Agreement 
contractor).
    (2) The following statement:
    This order is placed under written authorization from ________ 
dated ________.
In the event of any inconsistency between the terms and conditions 
of this order and those of your Federal Supply Schedule contract, 
Personal Property Rehabilitation Price Schedule contract, or 
Enterprise Software Agreement, the latter will govern.
    (3) The completed address(es) to which the Contractor's mail, 
freight, and billing documents are to be directed.
* * * * *
[FR Doc. 02-2058 Filed 1-28-02; 8:45 am]
BILLING CODE 5001-08-U