[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Unknown Section]
[Pages 58140-58142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23947]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204 and 252

RIN 0750-AG39


Defense Federal Acquisition Regulation Supplement; Annual 
Representations and Certifications (DFARS Case 2009-D011)

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to conform it to higher-level 
changes in the Code of Federal Regulation relating to annual 
representations and certifications.

DATES: Effective date: September 20, 2011.

FOR FURTHER INFORMATION CONTACT: 
    Mr. Julian Thrash, 703-602-0310.

SUPPLEMENTARY INFORMATION:

I. Background

    DFARS 204.1202 prescribes use of DFARS provision 252.204-7007, 
Alternate A, Annual Representations and Certifications, in contracts 
that also incorporate Federal Acquisition Regulation (FAR) provision 
52.204-8, Annual Representations and Certifications. FAR 52.204-8 was 
changed to add a new paragraph (c), which lists the applicable 
representations and certifications in the Online Representations and 
Certifications Application (ORCA). This FAR change necessitated a 
similar modification of DFARS 252.204-7007.
    DoD published a proposed rule in the Federal Register at 75 FR 
71646, on November 24, 2010, to update DFARS 204.1202 and 252.204-7007. 
The public comment period closed January 24, 2011. Two respondents 
submitted comments on the proposed rule. A discussion of the comments 
is provided below.

II. Discussion and Analysis

A. Applicability

    Comment: A respondent recommended DFARS 252.212-7000, Offeror 
Representations and Certifications--Commercial Items, be retained in 
the list of representations and certification at 204.1202(2) that are 
not to be included in the solicitation when using the provision DFARS 
252.204-7007, because that provision is to be used in non-commercial 
solicitations only. Another respondent recommended that DFARS 
204.1202(2) include provisions that are applicable to solicitations, 
rather than those not applicable, similar to FAR 52.204-8.
    Response: The first respondent is correct that DFARS provision 
252.212-7000 is for commercial solicitations only and will not be 
included in solicitations that include DFARS 252.204-7007, because that 
provision is used when FAR 52.204-8 is included, and that FAR provision 
is not used in solicitations issued under FAR part 12 for acquisition 
of commercial items. However, inclusion of DFARS 252.212-7000 on the 
list at DFARS 204.1202(2) is not appropriate, because the list at DFARS 
204.1202(2) should include only provisions that are listed in 252.204-
7007, Alternate A, Annual Representations and Certifications. 
Therefore, the final rule does not retain 252.212-7000 on the list at 
204.1202(2). Further, DFARS 204.1202(2) introductory text was amended 
to clarify that the listed provisions will not be included separately 
in the solicitation, because the appropriate representations and 
certifications will be covered by inclusion of DFARS 252.204-7007 in 
the solicitation.
    Comment: A respondent recommended the representations at DFARS 
252.216-7003 and DFARS 252.239-7011 be retained in the list of 
representations and certifications at DFARS 252.204-7007 because the 
Contractor is asked to make a representation about itself.
    Response: DFARS 252.216-7003 will be retained in the list. DFARS 
252.239-7011, however, will not be included because the clause requires 
contractors to make certain representations during contract performance 
concerning reimbursement of special construction and equipment costs. 
According to DFARS 239.7408-1(a), ``special construction normally 
involves a common carrier giving a special service or facility related 
to the performance of the basic telecommunications service 
requirements.'' Since these are costs that occur during contract 
performance, the contractor would not be able to make a proper 
representation prior to award.

B. Clarification

    Comment: A respondent recommended modifying the second sentence of 
DFARS 252.204.7007(e) by removing ``as indicated in (d) and (e) of this 
provision'' and adding ``as well as those in (d) above'' after ``posted 
electronically.''
    Response: When using the alternate at DFARS 252.204-7007, 
paragraphs (d) and (e) replace paragraph (d) of FAR 52.204-8. DFARS 
252.204-7007(e) provides that by submission of an offer, the offeror 
verifies that the FAR 52.204-8(c) representations and certifications 
and the DFARS 252.204-7007(d) representations and certifications are up 
to date in ORCA. Accordingly, the language in paragraph (e) was changed 
to include the statement ``as indicated in FAR 52.204-8(c) and 
paragraph (d) of this provision.''
    Comment: A respondent commented that the second to last line of 
252.204-7007(e) should say ``provision number'' instead of ``clause 
number.''
    Response: The term ``clause number'' was changed to ``provision 
number'' in the second to last line of 252.204-7007(e) and in the first 
block of the table provided.

C. Additional Changes

    DFARS 252.209-7001, Disclosure of Ownership or Control by the 
Government of a Terrorist Country, which was inadvertently omitted from 
the listing of provisions, has been added to 204.1202(2)(i) and 
252.204-7007(d)(1)(i). The Alternates for 252.225-7020, Trade 
Agreements Certificate, and 252.225-7035, Buy American Act-Free Trade 
Agreements-Balance of Payments Program Certificate, were added to 
252.204-7007(d)(2)(iii), and (vi), respectively.
    Additionally, to further clarify applicability of the various 
provisions, 252.204-7007(d) was reformatted into two sections to 
separately list the DFARS provisions that the contracting officer may 
individually select if one of the provisions applies for a particular

[[Page 58141]]

procurement. Additionally, the prescription for use of 252.204-7007 was 
reformatted to include it as a lead in to the provision rather than 
being a part of the provision.

III. Executive Orders 12866 and 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 is not a significant regulatory action and, 
therefore, was not subject to review under Section 6(b) of Executive 
Order 12866, Regulatory Planning and Review, dated September 30, 1993. 
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 for the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule does not impose any additional requirements on small 
businesses.
    A proposed rule published in the Federal Register at 75 FR 73997, 
on November 30, 2010, invited comments from small businesses and other 
interested parties. No comments were received from small entities on 
the affected DFARS subpart with regard to small businesses.

V. Paperwork Reduction Act

    The rule does not impose 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 204 and 252

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 204 and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 204 and 252 continues to 
read as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 204--ADMINISTRATIVE MATTERS

0
2. Section 204.1202 is revised to read as follows:


204.1202  Solicitation provision.

    When using the provision at FAR 52.204-8, Annual Representations 
and Certifications--
    (1) Use the provision with 252.204-7007, Alternate A, Annual 
Representations and Certifications; and
    (2) Do not include separately in the solicitation the following 
provisions, which are included in DFARS 252.204-7007:
    (i) 252.209-7001, Disclosure of Ownership or Control by the 
Government of a Terrorist Country.
    (ii) 252.209-7005, Reserve Officer Training Corps and Military 
Recruiting on Campus.
    (iii) 252.209-7002, Disclosure of Ownership or Control by a Foreign 
Government.
    (iv) 252.216-7003, Economic Price Adjustment--Wage Rates or 
Material Prices Controlled by a Foreign Government.
    (v) 252.225-7000, Buy American Act--Balance of Payments Program 
Certificate.
    (vi) 252.225-7020, Trade Agreements Certificate.
    (vii) 252.225-7022, Trade Agreements Certificate--Inclusion of 
Iraqi End Products.
    (viii) 252.225-7031, Secondary Arab Boycott of Israel.
    (ix) 252.225-7035, Buy American Act--Free Trade Agreements--Balance 
of Payments Program Certificate.
    (x) 252.225-7042, Authorization to Perform.
    (xi) 252.229-7003, Tax Exemptions (Italy).
    (xii) 252.229-7005, Tax Exemptions (Spain).
    (xiii) 252.247-7022, Representation of Extent of Transportation by 
Sea.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Section 252.204-7007 is revised to read as follows:


252.204-7007  Alternate A, Annual Representations and Certifications.

    As prescribed in 204.1202, use the following provision:

Alternate A, Annual Representations and Certifications (Sep 2011)

    Substitute the following paragraphs (d) and (e) for paragraph 
(d) of the provision at FAR 52.204-8:
    (d)(1) The following representations or certifications in ORCA 
are applicable to this solicitation as indicated:
    (i) 252.209-7001, Disclosure of Ownership or Control by the 
Government of a Terrorist Country. Applies to all solicitations 
expected to result in contracts of $150,000 or more.
    (ii) 252.209-7005, Reserve Officer Training Corps and Military 
Recruiting on Campus. Applies to all solicitations and contracts 
with institutions of higher education.
    (iii) 252.216-7003, Economic Price Adjustment-Wage Rates or 
Material Prices Controlled by a Foreign Government. Applies to 
fixed-price supply and service contracts when the contract is to be 
performed wholly or in part in a foreign country, and a foreign 
government controls wage rates or material prices and may during 
contract performance impose a mandatory change in wages or prices of 
materials.
    (iv) 252.225-7042, Authorization to Perform. Applies to all 
solicitations when performance will be wholly or in part in a 
foreign country.
    (v) 252.229-7003, Tax Exemptions (Italy). Applies to 
solicitations and contracts when contract performance will be in 
Italy.
    (vi) 252.229-7005, Tax Exemptions (Spain). Applies to 
solicitations and contracts when contract performance will be in 
Spain.
    (vii) 252.247-7022, Representation of Extent of Transportation 
by Sea. Applies to all solicitations except those for direct 
purchase of ocean transportation services or those with an 
anticipated value at or below the simplified acquisition threshold.
    (2) The following representations or certifications in ORCA are 
applicable to this solicitation as indicated by the Contracting 
Officer: [Contracting Officer check as appropriate.]
    ----(i) 252.209-7002, Disclosure of Ownership or Control by a 
Foreign Government.
    ----(ii) 252.225-7000, Buy American Act--Balance of Payments 
Program Certificate.
    ----(iii) 252.225-7020, Trade Agreements Certificate.
    ----Use with Alternate I.
    ----(iv) 252.225-7022, Trade Agreements Certificate--Inclusion 
of Iraqi End Products.
    ----(v) 252.225-7031, Secondary Arab Boycott of Israel.
    ----(vi) 252.225-7035, Buy American Act--Free Trade Agreements--
Balance of Payments Program Certificate.
    ----Use with Alternate I.
    ----Use with Alternate II.
    ----Use with Alternate III.
    (e) The offeror has completed the annual representations and 
certifications electronically via the Online Representations and 
Certifications Application (ORCA) Web site at https://orca.bpn.gov/. 
After reviewing the ORCA database information, the offeror verifies 
by submission of the offer that the representations and 
certifications currently posted electronically that apply to this 
solicitation as indicated in FAR 52.204-8(c) and paragraph (d) of 
this provision have been entered or updated within the last 12 
months, are current, accurate, complete, and applicable to this 
solicitation (including the business size standard applicable to the

[[Page 58142]]

NAICS code referenced for this solicitation), as of the date of this 
offer, and are incorporated in this offer by reference (see FAR 
4.1201); except for the changes identified below [offeror to insert 
changes, identifying change by provision number, title, date]. These 
amended representation(s) and/or certification(s) are also 
incorporated in this offer and are current, accurate, and complete 
as of the date of this offer.

------------------------------------------------------------------------
    FAR/DFARS
  provision No.          Title              Date             Change
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    Any changes provided by the offeror are applicable to this 
solicitation only, and do not result in an update to the 
representations and certifications posted on ORCA.
(End of provision)
[FR Doc. 2011-23947 Filed 9-19-11; 8:45 am]
BILLING CODE 5001-08-P