[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 25565-25566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10878]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 211 and 237
RIN 0750-AG72
Defense Federal Acquisition Regulations Supplement; Guidance on
Personal Services (DFARS Case 2009-D028)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD has adopted as final, with changes, the interim rule that
amended the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement section 831 of the National Defense Authorization Act for
Fiscal Year 2009, which required DoD to develop guidance on personal
services contracts.
DATES: Effective Date: May 5, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Dustin Pitsch, 703-602-1014.
SUPPLEMENTARY INFORMATION:
I. Background
Section 831 required DoD to mitigate the risks associated with
personal services by developing guidance enabling contracting officers
to better distinguish between personal services and nonpersonal
services. The interim rule amended DFARS parts 211 and 237 to (1)
require that statements of work or performance work statements clearly
distinguish between Government employees and contractor employees and
(2) ensure that procedures are adopted to prevent contracts from being
awarded or administered as unauthorized personal services contracts.
The interim rule included an internal requirement for a program
manager, or equivalent, certification that the service contract
requirement does not include an unauthorized personal services
arrangement. Because of the differing missions of DoD agencies, the
interim rule required agencies to adopt their own procedures.
DoD published an interim rule at 75 FR 54524 on September 8, 2010,
to implement section 831 of the National Defense Authorization Act for
Fiscal Year 2009 (Pub. L. 110-417, enacted October 28, 2009). The
period for public comment closed on November 8, 2010. Five respondents
provided public comments on the interim rule.
II. Discussion and Analysis
A. Support for DoD Actions
Comment: A respondent noted the DFARS requirement for agency-level
procedures to ensure that service contract requirements are vetted and
approved in a manner that will prevent them from being awarded or
administered as unauthorized personal services contracts. The
respondent stated its support for Defense agencies taking internal
action to ensure that no unauthorized personal services contracts are
requested. Another respondent expressed support for the rule and stated
that it ``helps create a boundary separating contractor and government
employees in all workplace environments.''
Response: The respondents' support is noted. No change to the DFARS
in this area was requested or made.
B. Limit Applicability
Comment: Two respondents specified that the DFARS should highlight
and limit applicability of this rule solely to personal services
contracts, not the general service contract population.
Response: No change was made in the final rule in response to this
comment. It is precisely because of the potential for a migration of a
``general service contract'' into what is effectively a ``personal
services contract'' that the rule is necessary. DoD, with strong
encouragement from the DoD Office of Inspector General, has determined
that there is a need to review all services for the purpose of ensuring
the services do not become personal services.
C. Add More Guidance
Comment: A respondent stated that DFARS 211.106 provides no actual
guidance to the agencies as to what the distinction between Government
employees and contractor employees is or how an agency is to make such
a determination. At a minimum, the respondent states, it may be
appropriate to include in DFARS 211.106 a cross reference to the
characteristics and descriptive elements in FAR 37.104. The respondent
thinks the rule does not provide any actionable direction to
contractors on what behaviors would be acceptable for contractor
employees based on the policies and practices of the location where the
contractor employee is assigned.
Response: A cross reference to FAR 37.104 and the characteristics
and descriptive elements therein has been added to DFARS 211.106.
However, the DFARS cannot unnecessarily repeat, paraphrase, or
otherwise restate material contained in the FAR (see FAR 1.304(b)), so
the DFARS addition was limited to a reference. Further, the agency-
level procedures are the appropriate location for the actionable,
agency-specific direction to contractors on acceptable behaviors.
D. Add More Specific Contract Administration Procedures
Comment: A respondent noted the absence in the interim rule, in
DFARS parts 237 or 242, of procedures, guidance, or information
focusing on postaward contract administration to prevent actual
administration of a contract as an unauthorized personal services
contract. The respondent recommended (a) referencing FAR 37.104(d) in
DFARS 237.503 and (b)
[[Page 25566]]
possibly adding coverage in DFARS part 242 relating to contract
administration.
Response: DoD has added a cross reference to FAR 37.104(d) at DFARS
237.503. In this final rule, no changes are made to DFARS subpart 242.
E. Editorial Recommendations
Comment: A respondent proposed several clarifying edits. The
respondent suggested moving some coverage from DFARS 237.503 to DFARS
237.104 and providing additional cross references. The respondent also
proposed to revise the title of the form at PGI 237.503(c).
Response: Some of these recommendations have been accommodated in
the changes noted above and as follows:
New coverage at DFARS 237.104(d) has been added to point
readers to the section entitled ``Agency-head responsibilities'' at
DFARS 237.503 to ensure awareness of the certification requirement.
The title of the certification at PGI 237.503(c) has been
changed to ``Certification of Nonpersonal Services.''
III. Executive Order 12866 and Executive Order 13563
Executive Orders 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). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget. 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 change solely impacts internal Government operating
procedures and will therefore not have a significant cost or
administrative impact on contractors, subcontractors, or offerors. An
initial regulatory flexibility analysis was not performed. No comments
were received from small entities on this rule.
V. Paperwork Reduction Act
The final rule does not contain any 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 211 and 237
Government procurement.
Mary Overstreet,
Editor, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations system confirms as
final the interim rule published at 75 FR 54524 on September 8, 2010,
with the following changes:
0
1. The authority citation for 48 CFR parts 211 and 237 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 211--DESCRIBING AGENCY NEEDS
0
2. Revise section 211.106 to read as follows:
211.106 Purchase descriptions for service contracts.
Agencies shall require that purchase descriptions for service
contracts and resulting requirements documents, such as statements of
work or performance work statements, include language to provide a
clear distinction between Government employees and contractor
employees. Agencies shall be guided by the characteristics and
descriptive elements of personal-services contracts at FAR 37.104.
Service contracts shall require contractor employees to identify
themselves as contractor personnel by introducing themselves or being
introduced as contractor personnel and displaying distinguishing badges
or other visible identification for meetings with Government personnel.
In addition, contracts shall require contractor personnel to
appropriately identify themselves as contractor employees in telephone
conversations and in formal and informal written correspondence.
PART 237--SERVICE CONTRACTING
0
3. Amend section 237.104 by adding paragraph (d) as follows:
237.104 Personal services contracts.
* * * * *
(d) See 237.503(c) for requirements for certification and approval
of requirements for services to prevent contracts from being awarded or
administered in a manner that constitutes an unauthorized personal
services contract.
* * * * *
0
4. Revise section 237.503 to read as follows:
237.503 Agency-head responsibilities.
(c) The agency head or designee shall employ procedures to ensure
that requirements for service contracts are vetted and approved as a
safeguard to prevent contracts from being awarded or administered in a
manner that constitutes an unauthorized personal services contract.
Contracting officers shall follow the procedures at PGI 237.503,
include substantially similar certifications in conjunction with
service contract requirements, and place the certification in the
contract file. The program manager or other official responsible for
the requirement, at a level specified by the agency, should execute the
certification. In addition, contracting officers and program managers
should remain aware of the descriptive elements at FAR 37.104(d) to
ensure that a service contract does not inadvertently become
administered as a personal-services contract.
[FR Doc. 2011-10878 Filed 5-4-11; 8:45 am]
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