[Federal Register Volume 71, Number 70 (Wednesday, April 12, 2006)]
[Rules and Regulations]
[Pages 18667-18669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3455]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 212

[DFARS Case 2003-D106]


Defense Federal Acquisition Regulation Supplement; Transition of 
Weapons-Related Prototype Projects to Follow-On Contracts

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement Section 847 of the National Defense Authorization Act for 
Fiscal Year 2004. Section 847 authorizes DoD to carry out a pilot 
program that permits the use of streamlined contracting procedures for 
the production of items or processes begun as prototype projects under 
other transaction agreements.

DATES: Effective Date: April 12, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; 
facsimile (703) 602-0350. Please cite DFARS Case 2003-D106.

SUPPLEMENTARY INFORMATION:

A. Background

    DoD published an interim rule at 69 FR 63329 on November 1, 2004, 
to implement Section 847 of the National Defense Authorization Act for 
Fiscal Year 2004 (Pub. L. 108-136). Section 847 authorizes DoD to carry 
out a pilot program for follow-on contracting for the production of 
items or processes begun as prototype projects under other transaction 
agreements. Contracts and subcontracts awarded under the program may be 
treated as those for the acquisition of commercial items; and items or 
processes acquired under the program may be treated as developed in 
part with Federal funds and in part at private expense for purposes of 
negotiating rights in technical data.
    One association submitted comments on the interim rule. A 
discussion of the comments is provided below.
    1. Comment: Definition of nontraditional defense contractor. The 
respondent noted that the definition in the rule is consistent with the 
statutory definition at 10 U.S.C. 2173, but stated

[[Page 18668]]

that the term ``performed on'' in paragraph (2) of the definition could 
be interpreted to include commercial subcontractors that ``performed 
on'' traditional defense contractors' prime contracts; this would 
inappropriately exclude those contractors from the pilot program. The 
respondent recommended revising paragraph (2)(ii) of the definition to 
clarify that only contracts with Federal agencies subject to the FAR 
for both prototype projects and basic, applied, or advanced research 
projects will be considered in the determination of a nontraditional 
defense contractor, because the current language could be interpreted 
to include contracts not subject to the FAR.
    DoD Response: The definition in the DFARS rule is consistent with 
the definition provided in the statute, and the terminology referenced 
by the respondent (i.e., ``performed on'') is identical to terminology 
used by DoD in related longstanding policy and guidance (e.g., DoD's 
audit policy for prototype projects that use other transaction 
authority (32 CFR part 3) and DoD's Other Transactions Guide for 
Prototype Projects). DoD is unaware of any issues with its 
interpretation and believes that revising the definition could cause 
unnecessary confusion. If a contractor has entered into another 
transaction agreement and has not, for a period of at least 1 year 
prior to the date of the other transaction agreement, been a direct 
party to a contract (prime or subcontract) that was subject to full 
cost accounting standards coverage or one that exceeded $500,000 to 
carry out prototype projects or to perform basic, applied, or advanced 
research projects for a Federal agency that is subject to the FAR, the 
contractor qualifies as a nontraditional defense contractor.
    2. Comment: Qualifying subcontracts. The respondent stated that the 
interim rule incorrectly interprets the statute to mean that both the 
prime contract and the subcontract must qualify in order for the 
subcontract to be treated as a subcontract for a commercial item.
    DoD Response: The statute does not require that the prime contract 
also qualify; it only requires that the prime contract be a contract 
for the prototype items or processes, which means a prime contract that 
includes the prototype item or process, rather than one that is only 
for the prototype items or processes. DoD has amended the rule to be 
consistent with the statute.
    3. Comment: Guidance on using fixed-price contracts. The respondent 
stated that the use of firm-fixed-price contracts or fixed-price 
contracts with economic price adjustment, as required by the statute, 
can be very difficult for the first production contract and recommended 
providing high level guidance for (i) adequately defining performance, 
including addressing difficult-to-quantify risks expressly; (ii) using 
interim fixed-price milestones and considering allowing later 
milestones to be priced during performance as more knowledge is gained; 
and (iii) ensuring that payments, including incentives, are linked to 
achieving clearly defined cost and technical performance objectives.
    DoD Response: Issues related to contract type are not unique to the 
application of this statutory authority and are outside the scope of 
this case.
    4. Comment: Treating intellectual property flexibly. The respondent 
stated that the final rule should expressly state that the statute 
reconfirms the existing authority at DFARS 227.7103-5(d) and 227.7103-
1(a), since contracting officers already have the authority to 
negotiate the minimum rights needed to satisfy the agency's needs. The 
respondent also stated that the final rule should expressly state that 
contractors are not required to change their accounting practices if 
the Government uses this authority to agree to deem the funding mixed, 
since the fact that the contractor allocates no private funding to a 
``deemed'' mixed funding project should not be grounds to question 
costs or the ``deemed'' mixed funding status.
    DoD Response. DoD does not believe it is necessary to expressly 
reconfirm this policy. However, DoD has amended the rule to add cross-
references to the appropriate sections. Adding these cross-references 
introduced some potential confusion regarding the distinction between 
delivery requirements and license rights. To clarify this distinction, 
the text on delivery requirements (at 212.7003(d) of the interim rule) 
has been relocated to 212.7003(a), including cross-references; and the 
text on license rights in 212.7003 has been included in a new paragraph 
(b). To further clarify that 212.7003 covers both delivery requirements 
and license rights, additional changes were made to the heading and 
introductory text of 212.7003, and to the cross-references in 212.7002-
1(b) and 212.7002-2(b).
    It is unnecessary to expressly state that contractors are not 
required to change their accounting practices when the Government uses 
this statutory authority, and the statute does not mandate that these 
technologies will be ``deemed'' as mixed funding in all cases. However, 
the comment highlights potential confusion created by the interim rule 
using the statute's permissive statement that data/software acquired 
under contracts awarded using this authority ``may be treated'' as 
mixed funding (former 212.7003 introductory text), combined with 
imperative language that directs negotiation of special license rights 
``* * * in view of the parties'' relative contributions to the 
development of the items or processes'' (former 212.7003(d)). To 
clarify the intent of the rule, the introductory text at 212.7003 has 
been revised to state that there shall be a rebuttable presumption of 
mixed funding, and 212.7003(b)(4) has been revised to specify when 
special license rights should be negotiated, with cross-references to 
the existing DFARS policy regarding such negotiations. This approach 
preserves many of the efficiencies of the ``normal'' procedures for 
acquiring commercial technologies (e.g., a rebuttable presumption 
regarding the most likely funding profiles and their associated license 
rights), while preserving the parties' ability to establish more 
appropriate license rights when the presumption is not accurate or 
equitable (e.g., by negotiating special license rights, or by using the 
validation of restrictive marking procedures).
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD has prepared a final regulatory flexibility analysis consistent 
with 5 U.S.C. 604. A copy of the analysis may be obtained from the 
point of contact specified herein. The analysis is summarized as 
follows:
    This rule amends the DFARS to implement Section 847 of the National 
Defense Authorization Act for Fiscal Year 2004. Section 847 authorizes 
DoD to carry out a pilot program for follow-on contracting for the 
production of items or processes begun as prototype projects under 
other transaction agreements. Contracts and subcontracts awarded under 
the program may be treated as those for the acquisition of commercial 
items; and items or processes acquired under the program may be treated 
as developed in part with Federal funds and in part at private expense 
for purposes of negotiating rights in technical data.
    DoD received no public comments with regard to the impact of the 
rule on small entities. As a result of comments received on other 
aspects of the interim rule, the final rule contains changes that 
clarify the types of subcontracts that may be treated as ``commercial'' 
under the pilot program, and contains changes that clarify the 
distinction between delivery requirements and license rights for 
technical data and computer

[[Page 18669]]

software for items or processes acquired under the program.
    The commercial procedures authorized by the rule are intended to 
ease the transition of nontraditional defense contractors from other 
transactions agreements to standard DoD contracts and, therefore, are 
expected to improve opportunities for such entities to receive DoD 
contract awards. In fiscal year 2005, DoD awarded 78 other transaction 
agreements totaling $150 million in value. Of these, 22 were awarded to 
small business concerns, totaling approximately $40 million in value.

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 Part 212

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

0
Accordingly, the interim rule amending 48 CFR part 212, which was 
published at 69 FR 63329 on November 1, 2004, is adopted as a final 
rule with the following changes:

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
1. The authority citation for 48 CFR part 212 continues to read as 
follows:

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

0
2. Section 212.7002-1 is amended by revising paragraph (b) to read as 
follows:


212.7002-1  Contracts under the program.

* * * * *
    (b) See 212.7003 for special procedures pertaining to technical 
data and computer software.

0
3. Sections 212.7002-2 and 212.7003 are revised to read as follows:


212.7002-2  Subcontracts under the program.

    (a) A subcontract for an item or process that does not meet the 
definition of ``commercial item'' may be treated as a subcontract for a 
commercial item, if the subcontract--
    (1) Is for the production of an item or process begun as a 
prototype project under an other transaction agreement;
    (2) Does not exceed $50,000,000;
    (3) Is awarded on or before September 30, 2008;
    (4) Is awarded to a nontraditional defense contractor; and
    (5) Is either--
    (i) A firm-fixed-price subcontract; or
    (ii) A fixed-price subcontract with economic price adjustment.
    (b) See 212.7003 for special procedures pertaining to technical 
data and computer software.


212.7003  Technical data and computer software.

    For purposes of establishing delivery requirements and license 
rights for technical data under 227.7102 and for computer software 
under 227.7202, there shall be a rebuttable presumption that items or 
processes acquired under a contract or subcontract awarded in 
accordance with 212.7002 were developed in part with Federal funds and 
in part at private expense (i.e., mixed funding).
    (a) Delivery requirements. Acquire only the technical data and 
computer software that are necessary to satisfy agency needs. Follow 
the requirements at 227.7103-1 and 227.7103-2 for technical data, and 
227.7203-1 and 227.7203-2 for computer software.
    (b) License rights. Acquire only the license rights in technical 
data and computer software that are necessary to satisfy agency needs.
    (1) For technical data, use the clauses at 252.227-7013, Rights in 
Technical Data--Noncommercial Items, and 252.227-7037, Validation of 
Restrictive Markings on Technical Data.
    (2) For computer software, use the clauses at 252.227-7014, Rights 
in Noncommercial Computer Software and Noncommercial Computer Software 
Documentation, and 252.227-7019, Validation of Asserted Restrictions--
Computer Software.
    (3) Require the contractor to include the clauses prescribed by 
paragraphs (b)(1) and (2) of this section in subcontracts awarded in 
accordance with 212.7002-2.
    (4) When the standard license rights for items or processes 
developed with mixed funding do not provide the minimum rights 
necessary to satisfy agency needs, negotiate for special license rights 
in accordance with 227.7103-5(d) and 227.7203-5(d).

[FR Doc. 06-3455 Filed 4-11-06; 8:45 am]
BILLING CODE 5001-08-P