[Federal Register Volume 79, Number 214 (Wednesday, November 5, 2014)]
[Rules and Regulations]
[Pages 65592-65595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26179]


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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: Final rule.

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SUMMARY: DoD is issuing a final rule amending 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: Effective November 5, 2014.

FOR FURTHER INFORMATION CONTACT: Ms. Janetta Brewer, telephone 571-372-
6104.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published a proposed rule in the Federal Register at 79 FR 
30535 on May 28, 2014, to revise provisions and clauses with alternates 
and the associated prescriptions, in order to clarify usage and 
facilitate the use of automated contract writing systems. No 
respondents submitted comments in response to the proposed rule, and no 
changes were made from the proposed rule in the final rule.

II. 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.

III. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
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 unique prescriptions for the basic version and each 
alternate of DFARS solicitations provisions and clauses will facilitate 
use of automated contract writing systems. The current convention 
requires the prescription for the basic provision or clause to address 
all the possibilities covered by the

[[Page 65593]]

alternates, and then the prescription for each alternate addresses only 
what is different for the use of that particular alternate. This rule 
revises the prescriptions so that the basic solicitation provision or 
clause and each alternate is unique and stands on its own. The 
prescriptions are not 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.
    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. 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.
    No comments were received in response to the initial regulatory 
flexibility analysis.
    This rule does not add any new reporting or recordkeeping 
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.

IV. 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 amended as 
follows:

0
1. The authority citation for 48 CFR 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 
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.
* * * * *

[[Page 65594]]

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;
0
b. Amending paragraph (b) by removing ``(Insert name of country, or To 
Be Determined)'' and adding ``(Insert name of country)'' in its place; 
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 
(NOV 2014)

* * * * *
    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 (NOV 2014)

    (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, provision title, and date;
0
b. In paragraph (b) introductory text removing ``offeror'' and adding 
``Offeror'' in its place; and
0
c. 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 (NOV 2014)

* * * * *

    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 (NOV 
2014)

    (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:

COST AND SOFTWARE DATA REPORTING SYSTEM--BASIC (NOV 2014)

* * * * *

    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 (NOV 2014)

    (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 (NOV 2014)

* * * * *

    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 (NOV 2014)

    (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, clause title, and date; and
0
b. Revising Alternates I and II.


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 (NOV 2014)

* * * * *

    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:

[[Page 65595]]

DELIVERY TICKETS--ALTERNATE I (NOV 2014)

    (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 (NOV 2014)

    (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. 2014-26179 Filed 11-4-14; 8:45 am]
BILLING CODE 5001-06-P