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DoD Finalizes Rules, Adds Interim Rule on Safety Inspections

The Department of Defense has issued one interim rule and four final rules amending the Defense Federal Acquisition Regulation Supplement: Safety of Facilities, Infrastructure, and Equipment for Military Operations (DFARS Case 2009-D029); Continuation of Essential Contractor Services (DFARS Case 2009-D017); Balance of Payments Program Exemption for Commercial Information Technology --Construction Material (DFARS Case 2009-D041); Trade Agreements --New Thresholds (DFARS Case 2009-D040); and Continuation of Current Contracts --Deletion of Redundant Text (DFARS Case 2010-D016). Each rule carries an effective date of October 29, 2010.

Safety of Facilities

The interim rule, DFARS Case 2009-D029, requires pre-occupancy safety and habitability inspections of military facilities. The rule implements Section 807 of the National Defense Authorization Act of 2010 (PL 111-84). Under Section 807, facilities, infrastructure, and equipment that are intended for use by DoD military or civilian personnel in current or future military operations should be inspected for safety and habitability prior to use, and should be brought into compliance with generally accepted standards for the safety and health of personnel to the maximum extent practicable consistent with the requirements of military operations and the best interests of DoD. The provision is implemented at new DFARS 246.270, Safety of Facilities, Infrastructure, and Equipment for Military Operations, which consists of four new subsections. Under new DFARS 246.270-2, Policy, contracts and orders for construction, installation, repair, maintenance, and operation of facilities must require compliance with Unified Facilities Criteria 1-200-01 and its standards to meet generally accepted standards for fire protection, structural integrity, electrical systems, plumbing, water treatment, waste disposal, and telecommunications networks. To ensure safety and habitability, inspections must occur prior to use. DFARS 246.270-1, Scope, limits the scope of the requirement to current or future military operations performed outside the United States, Guam, Puerto Rico, and the Virgin Islands; DFARS 246.270-3, Exceptions, allows the combatant commander to waive compliance with any standards when compliance is impracticable under prevailing operational conditions; and DFARS 246.270-4, Contract clause, prescribes the use of a new clause, DFARS 252.246-7004, Safety of Facilities, Infrastructure, and Equipment for Military Operations. The rule also adds a definition of "Discipline Working Group" at DFARS 246.101 and makes a conforming change to the clause at DFARS 252.212-7001. Comments referencing DFARS Case 2008-D029 are due December 28, 2010. For the text of the interim rule, see 70,016.604.

Essential Contractor Services

In DFARS Case 2009-D017, DoD adopts as final, with changes, an interim rule (70,016.559) that added policy and a contract clause requiring contractors providing essential services to be prepared to continue the services during periods of crisis. The interim rule established a requirement for contractors to submit plans to ensure continuation of essential contractor services that support mission-essential functions during a crisis situation. The rule added new DFARS Subpart 237.76, Continuation of Essential Contractor Services, which prescribed procedures for the acquisition of essential contractor services that support mission-essential functions. The rule also added a corresponding contract clause at DFARS 252.237-7023 and made a corresponding change to the DFARS companion resource, Procedures, Guidance, and Information, at PGI 207.105, Contents of written acquisition plans. In response to comments on the new plan requirement, DoD has revised DFARS 237.7602 to require contractors to "provide a written plan" for government-determined essential contractor services and DFARS 252.237-7023(c)(2) to require contractors to provide all plan updates to the contracting officer for approval. The final rule also creates a new clause, DFARS 252.237-7024, Notice of Continuation of Essential Contractor Services, to require the submission of the plan as part of the offeror's proposal, and an associated prescription at DFARS 237.7603. Other changes to the interim rule revise definitions at DFARS 237.7601, clarify the CO's role at DFARS 237.7602, and address causes beyond the contractor's control at DFARS 252.237-7023(d)(1). In connection with the final rule, DoD has made additional revisions to PGI 207.105. With appropriate consideration, COs may include the new changes in any existing contract in accordance with FAR 1.108(d)(3). For the text of the final rule, see 70,016.603.

Balance of Payments Exemption

The DFARS Case 2009-D041 rule finalizes, without change, a proposed rule (70,020.272 ) to implement the Balance of Payments Program exemption for construction material that is commercial information technology. The final rule associated with DFARS Case 2005-D011 (70,016.399) added policy to DFARS 225.7501(a)(2)(vi) to correspond to the exemption from the Buy American Act provided in annual appropriations acts since fiscal year 2004, because the Balance of Payments Program is an extension of the requirements of the Buy American Act to supplies or construction material to be used overseas. Although the policy stated it could apply to supplies or construction material, it was only implemented with regard to the acquisition of supplies. This rule makes the Balance of Payments Program construction clauses consistent with the stated policy. Accordingly, the final rule amends the clauses at DFARS 252.225-7044, Balance of Payments Program --Construction Material, and DFARS 252.225-7045, Balance of Payments Program --Construction Material under Trade Agreements, to implement the exemption for construction material that is commercial information technology. The text of this final rule may be viewed at 70,016.605.

Trade Agreements Thresholds

DoD also finalized, without change, the interim rule in DFARS Case 2009-D040 (70,016.567) that amended the DFARS to incorporate the increased thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative. The rule amended the clause prescriptions at DFARS 225.1101 and DFARS 225.7503 to reflect the increased thresholds. Every two years, the trade agreements thresholds are escalated according to a predetermined formula set forth in the agreements. The new thresholds specified by the U.S. Trade Representative appear in the Federal Register at 74 FR 68907. The interim rule contains a table identifying the new threshold amounts. For the text of the final rule, see 70,016.602.

Redundant Text

The final rule in DFARS Case 2010-D016 deletes redundant text relating to the continuation of current contracts with debarred and suspended contractors. Specifically, the final rule deletes DFARS 209.405-1, which limited orders with contractors that have been debarred, suspended, or proposed for debarment. A December 11, 2003, final rule issued with Federal Acquisition Circular 2001-18 (FAR Case 2002-010) incorporated these restrictions into the FAR at FAR 9.405 through FAR 9.405-2, rendering DFARS 209.405-1 redundant. The text of this final rule appears at 70,016.601.




(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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