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DoD Issues Another Round of DFARS Rules


The Department of Defense has issued five final rules and one interim rule amending the Defense Federal Acquisition Supplement, and its companion resource, Procedures, Guidance, and Information. DoD has now issued 34 rules amending the DFARS since the beginning of 2012. The new rules are: Only One Offer (DFARS Case 2011-D013); Updates to Wide Area WorkFlow (DFARS Case 2011-D027); Shipping Instructions (DFARS Case 2011-D052); New Qualifying Country–Czech Republic (DFARS Case 2012-D043); Acquisition of Tents and Other Temporary Structures (DFARS Case 2012-D015, Interim); and Applicability of Hexavalent Chromium Policy to Commercial Items (DFARS Case 2011-D047). All of the rules are effective June 29, 2012.

One Offer

The final rule in DFARS Case 2011-D013 implements a DoD Better Buying Power initiative and addresses acquisitions using competitive procedures in which only one offer is received. The intent of the initiative is to promote competition on all competitive solicitations. The revisions to this rule are part of DoD's retrospective plan under Executive Order 13563 completed in August 2011. DoD proposed the rule July 25, 2011 ( ¶70,020.302), and subsequently re-opened the comment period (see ¶70,020.304). DoD received comments from 19 respondents and as a result made significant changes from the proposed rule. The changes include:

  • Adding a policy section at DFARS 215.371-1 to replace proposed DFARS 215.371(a). The policy statement is completely rewritten to shift the emphasis from whether the circumstances described at FAR 15.403-1 (c)(1)(ii) constitute adequate price competition to an emphasis on the objectives of the rule to ensure the price is fair and reasonable and the statutory requirements for obtaining certified cost or pricing data are met.

  • Adding two FAR references at DFARS 215.371-2 ( FAR 6.502 (b) and FAR 11.002) to provide considerations on revising requirements to promote competition.

  • Adding DFARS 215.371-3 to address the process for obtaining fair and reasonable prices, replacing proposed DFARS 215.371(c)(2). The contracting officer is not required to obtain further cost or pricing data if the CO determines the offered price is fair and reasonable on the basis of cost or price analysis and that adequate price competition exists. Otherwise, the CO must obtain additional cost or pricing data, and that data must be certified, unless an exception to the requirement for certified cost or pricing data applies. (The Discussion portion of the rule contains a table that provides a summary of the requirement for cost or pricing data and when the data must be certified).

  • Adding an exception at DFARS 215.371-4 to the 30-day re-solicitation period to address application to small business set-asides. The final rule also states it does not apply to broad agency announcements.

  • Modifying the proposed statement at DFARS 215.403-1(c)(1)(B) to reference the procedures at DFARS 215.371-3 for ensuring a fair and reasonable price if only one offer is received. DFARS 215.371-3 clarifies that adequate price competition, as described at FAR 15.403-1 (c)(1)(ii), cannot be used for the purpose of determining that a price is fair and reasonable.

  • No longer addressing acquisitions under FAR Subpart 13.5, because that statutory authority has expired.

  • Adding statements at DFARS 208.404 (a) and DFARS 214.404-1 (2) to specify clearly the deviation from the statements in the corresponding FAR sections.

A full listing of the regulations impacted by this rule appears in the Regulation Table below. For the text of this final rule, see ¶70,016.723.

Wide Area WorkFlow

In DFARS Case 2011-D027, DoD has finalized a rule updating policies on submitting payment requests and receiving reports in electronic format. The Wide Area WorkFlow, which electronically interfaces with the primary DoD payment systems, is the accepted DoD system for generating invoices and receiving reports. The capabilities of WAWF have expanded to enable use in additional environments by a wider variety of users. As such, this final rule expands the use of WAWF for submission of payment requests and receiving reports and standardizes processes and instructions on the use of WAWF. Accordingly, the rule amends the additional acquisition flexibilities regulation at DFARS 218.170, policy language at DFARS 232.7002, payment procedures at DFARS 232.7003, the clause prescription at DFARS 232.7004, and the electronic submission of payments clause at DFARS 252.232-7003. The rule also adds a new clause at DFARS 252.232-7006, entitled "Wide Area Workflow Payment Instructions." The final rule makes changes to the proposed rule ( ¶70,020.310) to clarify language at DFARS 232.7002, DFARS 232.7004, and DFARS 252.232-7003. The new payment instruction clause at DFARS 252.232-7006 was changed to more clearly identify WAWF as DoD's method to receive payment requests and receiving reports and to clarify instructions for completing clause fill-ins. The final rule also adds a new section at PGI 232.7004, to provide contract clause instructions. The text of this final rule appears at ¶70,016.720.

Shipping Instructions

The DFARS Case 2011-D052 final rule updates the form used by contractors to request shipping instructions and the associated contract clause and clause prescription to cover both commercial and government bills of lading, and relocates the coverage within the DFARS. The rule relocates information from DFARS Subpart 242.14 to new DFARS Subpart 247.1 to align with changes to the FAR and to update DD Form 1659, Application for U.S. Government Shipping Documentation/Instructions, to provide for use of both commercial and government bills of lading (see ¶70,020.316 for the proposed rule). Specifically, the rule amends DFARS 212.301, removes DFARS Subpart 242.14, adds DFARS 247.201, revises the prescription section at DFARS 247.207, removes and reserves DFARS 252.242-7003, and adds a new clause at DFARS 252.247-7028. See ¶70,016.724 for the text of this final rule.

Czech Republic

The final rule associated with DFARS Case 2012-D043 amends the DFARS to add the Czech Republic as a qualifying country. A qualifying country is one with a reciprocal defense procurement memorandum of understanding or international agreement with the United States in which both countries agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country. The Secretary of Defense signed a new reciprocal defense procurement agreement with the Czech Minister of Defense on April 18, 2012. The agreement removes discriminatory barriers to procurements of supplies and services produced by industrial enterprises of the other country to the extent mutually beneficial and consistent with national laws, regulations, policies, and international obligations. The agreement does not cover construction or construction material. This final rule amends DFARS 225.003, DFARS 225.872-1, DFARS 252.225-7001, DFARS 252.225-7002, DFARS 252.225-7012, DFARS 252.225-7017, DFARS 252.225-7021, and DFARS 252.225-7036. The rule makes a corresponding change at PGI 204.606. For the text of this final rule, see ¶70,016.722.

Tents

An interim rule, DFARS Case 2012-D015, implements sections of the National Defense Authorization Act for Fiscal Year 2012 that address the acquisition of tents and other temporary structures. Specifically, the rule amends DFARS 225.7001, DFARS 225.7002-1, and the clause at DFARS 252.225-7012, Preference for Certain Domestic Commodities, to implement Sections 368 and 821 of the 2012 NDAA (PL 112-81). Section 368 requires contract awards that provide the best value for tents and other temporary structures, regardless of whether purchased by DoD or by another agency on DoD's behalf. Section 821 amended the Berry Amendment (10 USC 2533a) to extend the restriction requiring acquisition of domestic tents to include the structural components of tents, applicable to acquisitions that exceed the simplified acquisition threshold. There is also an exception for domestic nonavailability (see DFARS 225.7002-2). A "structural component of a tent" is defined in DFARS 252.225-7012 as "a component that contributes to the form and stability of the tent…." The rule also makes technical changes to DFARS 252.212-7001 and amends PGI 207.105 to update language on the content of written acquisition plans. Comments on this interim rule are due August 28, 2012. See ¶70,016.721 for the text of the rule.

Hexavalent Chromium

The final rule in DFARS Case 2012-D047 clarifies the applicability to commercial items of DoD policies relating to the use of material containing hexavalent chromium. In DFARS Case 2009-D004, DoD published a final rule ( ¶70,016.641) implementing policy addressing the serious human health and environmental risks related to the use of hexavalent chromium. Hexavalent chromium is a chemical that has been used in numerous DoD weapons systems platforms due to its corrosion protection properties. However, hexavalent chromium is a known carcinogen. That final rule, codified in new DFARS 252.223-7008, minimized the use of materials containing hexavalent chromium in items acquired by DoD. Shortly after the final rule was published, DoD became aware of a drafting oversight and the need to correct the text of final rule to reflect DoD's intent for the rule to apply to commercial items. This rule corrects that oversight by amending and revising DFARS 212.301, DFARS 244.403, and the clause at DFARS 252.244-7000. See ¶70,020.309 for the proposed rule. The text of the final rule appears at ¶70,016.725.

































































































































































































 






 

 

(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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