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.
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