[Federal Register Volume 79, Number 102 (Wednesday, May 28, 2014)]
[Proposed Rules]
[Pages 30535-30538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-12134]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 217, 234, 237, and 252

RIN 0750-AI27


Defense Federal Acquisition Regulation Supplement: Clauses With 
Alternates--Special Contracting Methods, Major System Acquisition, and 
Service Contracting (DFARS Case 2014-D004)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to revise and update clauses and their 
prescriptions for special contracting methods, major system 
acquisition, and service contracting to create basic and alternate 
clauses structured in a manner to facilitate use of automated contract 
writing systems. The rule also includes the full text of each 
alternate, rather than only showing the paragraphs that differ from the 
basic clause.

DATES: Comment Date: Comments on the proposed rule should be submitted 
in writing to the address shown below on or before July 28, 2014, to be 
considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2014-D004, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2014-D004'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2014-D004.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2014-D004'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2014-D004 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Janetta Brewer, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check http://www.regulations.gov, approximately two to three days after submission 
to verify posting (except allow 30 days for posting of comments 
submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Janetta Brewer, Defense 
Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6104.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is undertaking a revision of provisions and clauses with 
alternates and the associated prescriptions, in order to clarify usage 
and facilitate the use of automated contract writing systems. These 
proposed changes do not affect the meaning or applicability of the 
provisions or clauses.

II. Discussion

    This proposed rule addresses DFARS parts 217, 234, and 237 clauses 
that have alternates. The affected clauses are--
     252.217-7000, Exercise of Option to Fulfill Foreign 
Military Sales Commitments, with one alternate;
     252.234-7003 Notice of Cost and Software Data Reporting 
System, with one alternate;
     252.234-7004 Cost and Software Data Reporting System, with 
one alternate;
     252.237-7002 Award to Single Offeror, with one alternate; 
and
     252.237-7016 Delivery Tickets, with two alternates.
    The naming convention results in proposed new clause titles, e.g., 
Exercise of Option to Fulfill Foreign Military Sales Commitments--
Basic, and Exercise of Option to Fulfill Foreign Military Sales 
Commitments--Alternate I.
    An umbrella prescription is proposed to be added for the elements 
common to

[[Page 30536]]

the basic clause and alternate. The specific prescription for the basic 
clause and alternate would then address only the requirements for their 
use that enable the selection of the basic or the alternate. The 
planned changes will increase the clarity and ease of use but will not 
revise the applicability of the clause or provision in any way. The 
presentation of the text of alternates would no longer consist solely 
of paragraphs that are different from the basic clause, but would 
instead include the entire full text of the alternate clause. Further, 
this proposed rule would also revise the applicable clause preface, 
i.e., the language in part 252 that precedes a provision, clause, or 
alternate. The clause preface language is being tailored to identify 
the specific clause prescription reference for each basic and alternate 
clause and to delineate how the basic and alternate clauses differ.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 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). E.O. 
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 E.O. 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 does not expect this proposed rule 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 it merely revises the prescriptions for solicitation provisions 
and clauses with alternates, and includes the full text of each 
provision or clause for each alternate. However, an initial regulatory 
flexibility analysis has been performed and is summarized as follows:
    The purpose of this case is to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to create unique 
prescriptions for the basic version and each alternate of DFARS parts 
217, 234, and 237 solicitations provisions and clauses, and to include 
the full text of each clause alternate.
    The use of automated contract writing systems will be facilitated 
by having unique prescriptions for the basic version and each alternate 
of DFARS solicitations provisions and clauses. The current convention 
requires the prescription for the basic provision or clause to address 
all the possibilities covered by the alternates, and then the 
prescription for each alternate addresses only what is different for 
the use of that particular alternate. This rule will revise the 
prescriptions so that the basic solicitation provision or clause and 
each alternate is unique and stands on its own. The prescriptions will 
not be revised in any way to change when they are applicable to 
offerors, contractors, or subcontractors.
    Additionally, the inclusion of the full text of each provision or 
clause alternate aims to make the terms of a provision or clause 
alternate clearer to offerors, as well as to DoD contracting officers. 
Instead of the current convention for alternates to show only 
paragraphs changed from the basic version of the provision or clause, 
this rule proposes to include the full text of each version of the 
clause. This will assist in making the terms of the clause clearer, 
because all paragraph substitutions will have already been made. 
Inapplicable paragraphs from the basic version of the clause that are 
superseded by the alternate are not included in the solicitation or 
contract to prevent confusion.
    Potential offerors, including small businesses, may be affected by 
this rule by seeing an unfamiliar format for clause alternates in 
solicitations and contracts issued by DoD contracting activities. 
According to the Federal Procurement Data System, in fiscal year 2012, 
DoD made approximately 270,000 contract awards (not including 
modification and orders) that exceeded the micro-purchase threshold, of 
which approximately 180,000 (67%) were awarded to small businesses. It 
is unknown how many of these contracts were awarded that included an 
alternate to a DFARS provision or clause. Nothing substantive will 
change in solicitations or contracts for potential offerors, and only 
the appearance of how clause alternates are presented in the 
solicitations and contracts will be changed. This rule may result in 
potential offerors, including small businesses, expending more time to 
become familiar with and to understand the new format of the clause 
alternates in full text contained in contracts issued by any DoD 
contracting activity. The rule also anticipates saving contractors time 
by making all paragraph substitutions from the basic version of the 
clause, and not requiring the contractors to read inapplicable 
paragraphs contained in the basic version of the clause where 
alternates are also included in the solicitations and contracts. The 
overall burden caused by this rule is expected to be negligible and 
will not be any greater on small businesses than it is on large 
businesses.
    This rule does not add any new information collection requirements. 
The rule does not duplicate, overlap, or conflict with any other 
Federal rules. No alternatives were identified that will accomplish the 
objectives of the rule.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2014-D004), in 
correspondence.

V. Paperwork Reduction Act

    The 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 217, 234, 237, and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 217, 234, 237, and 252 are proposed to be 
amended as follows:

0
1. The authority citation for parts 217, 234, 237, and 252 continues to 
read as follows:

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

PART 217--SPECIAL CONTRACTING METHODS

0
2. In section 217.208-70, revise paragraph (a) to read as follows:


217.208-70   Additional clauses.

    (a) Use the basic or the alternate of the clause at 252.217-7000, 
Exercise of Option to Fulfill Foreign Military Sales Commitments, in 
solicitations and contracts when an option may be used for Foreign 
Military Sales requirements. Do not use the basic or the alternate of 
this clause in contracts for establishment or replenishment of DoD

[[Page 30537]]

inventories or stocks, or acquisitions made under DoD cooperative 
logistics support arrangements.
    (1) Use the basic clause when the Foreign Military Sales country is 
known at the time of solicitation or award.
    (2) Use the alternate I clause when the foreign military sale 
country is not known at the time of solicitation or award.
* * * * *

PART 234--MAJOR SYSTEM ACQUISITION

0
3. Revise section 234.7101 to read as follows:


234.7101   Solicitation provision and contract clause.

    (a) Use the basic or the alternate of the provision at 252.234-
7003, Notice of Cost and Software Data Reporting System, in any 
solicitation that includes the basic or the alternate of the clause at 
252.234-7004, Cost and Software Data Reporting.
    (1) Use the basic provision when the solicitation includes the 
clause at 252.234-7004, Cost and Software Data Reporting--Basic.
    (2) Use the alternate I provision when the solicitation includes 
the clause at 252.234-7004, Cost and Software Data Reporting--Alternate 
I.
    (b) Use the basic or the alternate of the clause at 252.234-7004, 
Cost and Software Data Reporting System, in solicitations that include 
major defense acquisition programs or major automated information 
system programs as follows:
    (1) Use the basic clause in solicitations and contracts for major 
defense acquisition programs or major automated information system 
programs that exceed $50 million.
    (2) Use the alternate I clause in solicitations and contracts for 
major defense acquisition programs or major automated information 
system programs with a value equal to or greater than $20 million but 
less than or equal to $50 million, when so directed by the program 
manager with the approval of the OSD Deputy Director, Cost Assessment.

PART 237--SERVICE CONTRACTING

0
4. In section 237.7003, revise paragraph (a) to read as follows:


237.7003   Solicitation provisions and contract clauses.

    (a) Use the basic or the alternate of the provision at 252.237-
7002, Award to Single Offeror, in solicitations and contracts for 
mortuary services.
    (1) Use the basic provision in all sealed bid solicitations for 
mortuary services.
    (2) Use the alternate I provision in all negotiated solicitations 
for mortuary services.
* * * * *
0
5. In section 237.7101, revise paragraph (e) to read as follows:


237.7101   Solicitation provisions and contract clauses.

* * * * *
    (e) Use the basic or an alternate of the clause at 252.237-7016, 
Delivery Tickets, in all solicitations and contracts for laundry and 
dry cleaning services.
    (1) Use the basic clause when services are not to be provided on a 
bulk weight basis.
    (2) Use the alternate I clause when services are for bag type 
laundry to be provided on a bulk weight basis.
    (3) Use the alternate II clause when services are unsorted laundry 
to be provided on a bulk weight basis.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Amend section 252.217-7000 by--
0
a. Revising the introductory text, clause title and date; and
0
b. Revising Alternate I.
    The revisions read as follows:


252.217-7000   Exercise of Option to Fulfill Foreign Military Sales 
Commitments.

    As prescribed in 217.208-70(a), use one of the following clauses:
    Basic. As prescribed in 217.208-70(a)(1), use the following clause.

Exercise of Option To Fulfill Foreign Military Sales Commitments--Basic 
(Date)

* * * * *
    Alternate I. As prescribed in 217.208-70(a)(2), use the following 
clause, which uses a different paragraph (b) than paragraph (b) of the 
basic clause.

Exercise of Option To Fulfill Foreign Military Sales Commitments--
Alternate I (Date)

    (a) The Government may exercise the option(s) of this contract 
to fulfill foreign military sales commitments.
    (b) On the date the option is exercised, the Government shall 
identify the foreign country for the purpose of negotiating any 
equitable adjustment attributable to foreign military sales. Failure 
to agree on an equitable adjustment shall be treated as a dispute 
under the Disputes clause of this contract.


(End of clause)

0
7. Amend section 252.234-7003 by--
0
a. Revising the introductory text, clause title and date; and
0
b. Revising Alternate I.
    The revisions read as follows:


252.234-7003   Notice of Cost and Software Data Reporting System

    As prescribed in 234.7101(a) use one of the following provisions:
    Basic. As prescribed in 234.7101(a)(1), use the following 
provision.

Notice of Cost and Software Data Reporting System--Basic (Date)

* * * * *
    Alternate I. As prescribed in 234.7101(a)(2), use the following 
provision, which uses a different paragraph (c) than the basic 
provision.

Notice of Cost and Software Data Reporting System--Alternate I (Date)

    (a) This solicitation includes--
    (1) The Government-approved cost and software data reporting 
(CSDR) plan for the contract, DD Form 2794; and
    (2) The related Resource Distribution Table.
    (b) As part of its proposal, the offeror shall--
    (1) Describe the process to be used to satisfy the requirements 
of the DoD 5000.04-M-1, CSDR Manual, and the Government-approved 
CSDR plan for the proposed contract;
    (2) Demonstrate how contractor cost and data reporting (CCDR) 
will be based, to the maximum extent possible, upon actual cost 
transactions and not cost allocations;
    (3) Demonstrate how the data from its accounting system will be 
mapped into the standard reporting categories required in the CCDR 
data item descriptions;
    (4) Describe how recurring and nonrecurring costs will be 
segregated;
    (5) Provide comments on the adequacy of the CSDR contract plan 
and related Resource Distribution Table; and
    (6) Submit the DD Form 1921, Cost Data Summary Report, and DD 
Form 1921-1, Functional Cost-Hour Report, with its pricing proposal.
    (c) CSDR reporting will be required for subcontractors for 
selected subcontracts identified in the CSDR contract plan as 
requiring such reporting. The offeror shall identify, by providing 
comments on the Resource Distribution Table, the subcontractors, or, 
if the subcontractors have not been selected, the subcontracted 
effort.


(End of provision)

0
8. Amend section 252.234-7004 by--
0
a. Revising the introductory text, clause title and date; and
0
b. Revising Alternate I.
    The revisions read as follows:


252.234-7004   Cost and Software Data Reporting System

    As prescribed in 234.7101(b), use one of the following clauses:
    Basic. As prescribed at 234.7101(b)(1), use the following clause.

[[Page 30538]]

Cost and Software Data Reporting System--Basic (Date)

* * * * *
    Alternate I. As prescribed in 234.7101(b)(2), use the following 
clause, which uses a different paragraph (b) than the basic clause.

Cost and Software Data Reporting System--Alternate I (Date)

    (a) In the performance of this contract, the Contractor shall 
use--
    (1) A documented standard cost and software data reporting 
(CSDR) process that satisfies the guidelines contained in the DoD 
5000.04-M-1, CSDR Manual;
    (2) Management procedures that provide for generation of timely 
and reliable information for the contractor cost data reports 
(CCDRs) and software resources data reports (SRDRs) required by the 
CCDR and SRDR data items of this contract; and
    (3) The Government-approved CSDR plan for this contract, DD Form 
2794, and the related Resource Distribution Table as the basis for 
reporting in accordance with the required CSDR data item 
descriptions (DIDs).
    (b) The Contractor shall require CSDR reporting from selected 
subcontractors identified in the CSDR contract plan as requiring 
such reporting. If the Contractor changes subcontractors or makes 
new awards for selected subcontract effort, the Contractor shall 
notify the Government.


(End of clause)

0
9. Amend section 252.237-7002 by--
0
a. Revising the introductory text, provision title and date; and
0
b. Revising Alternate I.
    The revisions read as follows:


252.237-7002   Award to Single Offeror.

    As prescribed in 237.7003(a), use one of the following provisions:
    Basic. As prescribed in 237.7003(a)(1), use the following 
provision.

Award to Single Offeror--Basic (Date)

* * * * *
    Alternate I. As prescribed in 237.7003(a)(2), use the following 
provision, which uses a different paragraph (d) than the basic 
provision.

Award to Single Offeror--Alternate I (Date)

    (a) Award shall be made to a single offeror.
    (b) Offerors shall include unit prices for each item. Failure to 
include unit prices for each item will be cause for rejection of the 
entire offer.
    (c) The Government will evaluate offers on the basis of the 
estimated quantities shown.
    (d) Award will be made to that responsive, responsible offeror 
whose total aggregate offer is in the best interest of the 
Government.


(End of provision)

0
10. Amend section 252.237-7016 by--
0
a. Revising the introductory text, provision title and date; and
0
b. Revising Alternate I and Alternate II.
    The revisions read as follows:


252.237-7016   Delivery Tickets.

    As prescribed in 237.7101(e), use one of the following clauses:
    Basic. As prescribed in 237.7101(e)(1), use the following clause.

Delivery Tickets--Basic (Date)

* * * * *
    Alternate I. As prescribed in 237.7101(e)(2), use the following 
clause, which includes paragraphs (c), (d), and (e) not included in the 
basic clause.

Delivery Tickets--Alternate I (Date)

    (a) The Contractor shall complete delivery tickets in the number 
of copies required and in the form approved by the Contracting 
Officer, when it receives the articles to be serviced.
    (b) The Contractor shall include one copy of each delivery 
ticket with its invoice for payment.
    (c) Before the Contractor picks up articles for service under 
this contract, the Contracting Officer will ensure that--
    (1) Each bag contains only articles within a single bag type as 
specified in the schedule; and
    (2) Each bag is weighed and the weight and bag type are 
identified on the bag.
    (d) The Contractor shall, at time of pickup--
    (1) Verify the weight and bag type and record them on the 
delivery ticket; and
    (2) Provide the Contracting Officer, or representative, a copy 
of the delivery ticket.
    (e) At the time of delivery, the Contractor shall record the 
weight and bag type of serviced laundry on the delivery ticket. The 
Contracting Officer will ensure that this weight and bag type are 
verified at time of delivery.


(End of clause)

    Alternate II. As prescribed in 237.7101(e)(3), use the following 
clause, which includes paragraphs (c), (d), and (e) not included in the 
basic clause.

Delivery Tickets--Alternate II (Date)

    (a) The Contractor shall complete delivery tickets in the number 
of copies required and in the form approved by the Contracting 
Officer, when it receives the articles to be serviced.
    (b) The Contractor shall include one copy of each delivery 
ticket with its invoice for payment.
    (c) Before the Contractor picks up articles for service under 
this contract, the Contracting Officer will ensure that each bag is 
weighed and that the weight is identified on the bag.
    (d) The Contractor, at time of pickup, shall verify and record 
the weight on the delivery ticket and shall provide the Contracting 
Officer, or representative, a copy of the delivery ticket.
    (e) At the time of delivery, the Contractor shall record the 
weight of serviced laundry on the delivery ticket. The Contracting 
Officer will ensure that this weight is verified at time of 
delivery.


(End of clause)

[FR Doc. 2014-12134 Filed 5-27-14; 8:45 am]
BILLING CODE 5001-06-P