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DoD Issues Five Rules Amending the DFARS

PThe Department of Defense has issued five rules amending the DoD Federal Acquisition Regulation Supplement. One rule (DFARS Case 2011-D048) separates DFARS provisions and clauses that were previously combined, two rules (DFARS Case 2012-D016 and DFARS Case 2012-D018) adjust thresholds, one rule (DFARS Case 2012-D020) removes a congressional notification requirement, and one rule makes a technical amendment. Four of the rules are final and one is interim.

Separation of Provisions and Clauses

The final rule in DFARS Case 2011-D048 separates provisions and clauses that were previously combined. The rule explains that a provision is included only in the solicitation, and generally includes representations and certifications, to which the offeror responds in its offer. A contract clause, on the other hand, is included in both the solicitation and the resultant contract, and provides the terms that apply throughout contract performance. The rule removes the representations from the clauses at DFARS 252.209-7005, DFARS 252.216-7000, DFARS 252.216-7003, DFARS 252.229-7003, and DFARS 252.229-7005, and creates five new provisions, which are to be used in solicitations that include the associated clauses. The new provisions are DFARS 252.209-7003, DFARS 252.216-7007, DFARS 252.216-7008, DFARS 252.229-7012, and DFARS 252.229-7013. Conforming changes have been made to DFARS 252.204-7007, Alternate A, Annual Representations and Certifications, and the associated prescriptions at DFARS 204.1202 (2). The rule also affects DFARS 209-470-4, DFARS 216.203-4-70, and DFARS 229.402-70. DoD received no public comments on the proposed version of the rule ( 70,020.308). For the text of the final rule, which is effective March 30, 2012, see 70,016.707.

Repeal of Notification Requirement

The DFARS Case 2012-D020 final rule amends the DFARS to implement Section 809(b) of the National Defense Authorization Act for Fiscal Year 2012 (PL 112-81) to remove a congressional notification requirement for single source task- or delivery-order contract awards over $103 million. This NDAA removed the requirement for the agency head to notify the congressional defense committees within 30 days for each single source TO or DO contract award over $103 million. The rule amends DFARS 216.504 (c)(1)(ii)(D), which now states that the authority to make the determination authorized in FAR 16.504 (c)(1)(ii)(D)(1) shall not be delegated below the level of the senior procurement executive. A related change to the DFARS companion resource, Procedures, Guidance, and Information, removes PGI 216.504. The effective date of the rule is March 30, 2012. For the text of the rule, see 70,016.708.

Passenger Sedan Threshold

The interim rule implements Section 814(b) of the FY 2012 NDAA, which requires the dollar limitation established in 10 USC 2253(a)(2) for the acquisition of right-hand drive passenger sedans to be included on the list of dollar thresholds subject to inflation adjustment in accordance with the requirements of 41 USC 1908. The rule adds DFARS 201.109 (a), to include the dollar limitation for the acquisition of right-hand drive passenger sedans in the list of statutory acquisition-related dollar thresholds to be adjusted for inflation, and DFARS 212.271, to provide the escalated threshold of $40,000 per vehicle. The threshold was changed from $12,000 per vehicle to $30,000 per vehicle in 1997. The effective date of the rule is March 30, 2012. Comments referencing DFARS Case 2012-D016 are due May 29, 2012. For the text of the rule, see 70,016.705.

Peer Review Threshold

The DFARS Case 2012-D018 final rule reduces the threshold for DoD peer reviews of noncompetitive contracts from $1 billion to $500 million. An earlier rule, Peer Reviews of Contracts (DFARS Case 2008-D035, 70,016.523), required military departments, defense agencies, and DoD field activities to establish procedures for preaward and postaward peer review of solicitations and contracts for services valued at less than $1 billion. The new rule revises DFARS 201.170 to clarify DoD peer review phases and revise the threshold for peer reviews of noncompetitive procurements. Also, the rule requires military departments and defense agencies to establish procedures for preaward peer reviews for noncompetitive procurements valued at less than $500 million. Finally, the rule adds an e-mail address for the submission of rolling annual forecasts of acquisitions. This rule goes into effect April 30, 2012. For the text of the rule, see 70,016.704.

Technical Amendment

Finally, DoD has issued a technical amendment. This final rule amends the DFARS by adding PGI guidance that explains how and where to report violations or potential violations of the Lobbying Disclosure Act (31 USC 1352). The rule adds new DFARS 203.806, Processing suspected violations, which instructs readers to report suspected violations to the address at new PGI 203.8 (a). The effective date of the rule is March 30, 2012. For the text of the rule, see 70,016.706.




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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