Publication Notices


DEFENSE FAR SUPPLEMENT (DFARS) Publication Notice 20221028


On October 28, 2022, DoD published the following changes to the DFARS:

FINAL RULES:


Requirement for Firms Used to Support Department of Defense Audits (DFARS Case 2019-D010)


DoD is issuing a final rule amending the DFARS to implement section 1006 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019, as amended by section 1011 of the NDAA for FY 2020. Section 1006 requires accounting firms that provide financial statement auditing or audit remediation services in support of the Financial Improvement and Audit Remediation Plan to provide to DoD a statement setting forth the details of any disciplinary proceedings with respect to the accounting firm or its associated persons before any entity with the authority to enforce compliance with rules or laws applying to audit services offered by the accounting firm. DoD policy extends this requirement to firms other than accounting firms.

Affected parts/subparts/sections:  212.301; 237.270; TOC 252, 252.237-7000, 252.237-7001, 252.237-7025, and 252.237-7026.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes made by this rule is here.

Requiring Data Other than Certified Cost or Pricing Data (DFARS Case 2020-D008)


DoD is issuing a final rule amending the DFARS to implement section 803 of the NDAA for FY 2020 that provides additional requirements relating to the submission of data other than certified cost or pricing data. Section 803 prohibits contracting officers from determining that the price of a contract or subcontract is fair and reasonable based solely on historical prices paid by the Government. Section 803 states that an offeror is ineligible for award, if the contracting officer is unable to determine proposed prices are fair and reasonable by any other means, when an offeror fails to make a good faith effort to comply with a reasonable request to submit data other than certified cost or pricing data, unless the head of the contracting activity determines that it is in the best interest of the Government to make the award to that offeror.

Affected parts/subparts/sections:  215.403-3, 215.404-1; and 242.1502. PGI 215.403-1, 215.403-3, and 215.404-1.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes made by this rule is here.

A Microsoft Word format document showing the DFARS PGI changes made by this rule is here.

Prohibition on Award to Contractors that Require Certain Nondisclosure Agreements (DFARS Case 2021-D018)


DoD is issuing a final rule amending the DFARS to implement section 883 of the NDAA for FY 2021. Section 883 prohibits award of any DoD contracts to an entity that requires its employees to sign internal confidentiality agreements or statements that would prohibit or otherwise restrict its employees from lawfully reporting waste, fraud, or abuse related to the performance of a DoD contract to a designated investigative or law enforcement representative of DoD authorized to receive such information. The statute also requires entities to inform their employees of the limitations on confidentiality agreements or other statements and to represent compliance with the requirements of section 883 in the System for Award Management prior to submitting an offer or quote.

Affected parts/subparts/sections:  TOC 203, 203.900, 203.909, 203.909-3, 203.970; and 212.301.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes made by this rule is here.

Reporting Tax Information on Certain Foreign Procurements (DFARS Case 2021-D029)


DoD is issuing a final rule amending the DFARS to allow for the efficient and accurate identification of contracts subject to excise tax withholding. DoD is also amending the DFARS to prohibit use of the Governmentwide commercial purchase card as a method of payment when the tax on certain foreign procurements applies.

Affected parts/subparts/sections:  212.301; 213.301; TOC 229, subpart 229.2, 229.204, 229.402-70; TOC 232, 232.1108, 232.1108-70; TOC 252, 252.229-7014; and TOC DFARS.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes made by this rule is here.

Repeal of Preference for Fixed-Price Contracts (DFARS Case 2022-D007)


DoD is issuing a final rule amending the DFARS to implement section 817 of the NDAA for FY 2022, which repeals section 829 of the NDAA for FY 2017. Section 829 required contracting officers to first consider fixed-price contracts, including fixed-price incentive contracts, when determining contract type and to obtain approval from the head of the contracting activity for certain cost-reimbursement contracts.

Affected parts/subparts/sections:  216.102, 216.301-3, 216.401; and 235.006.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes made by this rule is here.

Removal of Passive Radio Frequency Requirements (DFARS Case 2022-D020)


DoD is issuing a final rule amending the DFARS to remove passive radio frequency identification (RFID) requirements. DoD no longer requires the use of passive RFID tags for shipments due to the use of more cost-effective technologies.

Affected parts/subparts/sections:  TOC 211, 211.275, 211.275-1 through 211.275-3; 212.301; TOC 252 and 252.211-7006. PGI 201.106.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes made by this rule is here.

Removal of Pilot Program for Acquisition of Military-Purpose Nondevelopmental Items (DFARS Case 2022-D022)


DoD is issuing a final rule amending the DFARS to remove the Pilot Program for Acquisition of Military-Purpose Nondevelopmental Items, since the statutory authority for the program has expired. Section 866 of the NDAA for FY 2011 authorized the pilot program for a 5-year period through January 6, 2016. Subsequently, section 814 of the NDAA for FY 2014 extended the pilot program through December 31, 2019. Since the pilot program expired on December 31, 2019, the program is being removed from the DFARS. No contracts were awarded using this pilot program authority.

Affected parts/subparts/sections:  TOC 212, subpart 212.71, 212.7100, 212.7101, 212.7102, 212.7102-1, 212.7102-2, 212.7102-3, 212.7103; TOC 252 and 252.212-7002; and TOC DFARS. PGI subpart 212.71, 212.7102, and 212.7102-3.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes made by this rule is here.

A Microsoft Word format document showing the DFARS PGI changes made by this rule is here.

PROPOSED RULES:


Quick-Closeout Procedures Threshold (DFARS Case 2021-D001)


DoD is proposing to amend the DFARS to implement a recommendation made by the Government Accountability Office (GAO) in GAO Report 17-738, Federal Contracting: Additional Management Attention and Action Needed to Close Contracts and Reduce Audit Backlog, published in September 2017. GAO recommended that DoD develop a means for DoD-wide oversight into both components’ progress in meeting goals on closing contracts and the status of contracts eligible for closeout. Additionally, the Advisory Panel on Streamlining and Codifying Acquisition Regulations (Section 809 Panel) recommended authorizing the settlement of final overhead rates when it is in the best interest of the Government and closing completed contracts regardless of dollar value or the percentage of unsettled direct and indirect costs allocable to the contracts (recommendation 58).

Proposed changes to parts/subparts/sections:  242.708.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes proposed to be made by this rule is here.

Undefinitized Contract Actions (DFARS Case 2021-D003)


DoD is proposing to amend the DFARS to implement recommendations to refine management of undefinitized contract actions (UCAs) as addressed in the DoD Inspector General Audit of Military Department Management of Undefinitized Contract Actions (Report No. DODIG-2020-084). This report recommends changes to the DFARS to encourage contractors to provide timely qualifying proposals, including the possibility of the Government withholding a percentage of payments yet to be paid under a UCA until it receives a qualifying proposal from the contractor.

Proposed changes to parts/subparts/sections:  215.404-71-3; 217.7404-3; and 252.217-7027.

The Federal Register notice for this rule is here.

A Microsoft Word format document showing the DFARS changes proposed to be made by this rule is here.

DFARS ADMINISTRATIVE CHANGE:


1.  DFARS final rule 2020-D009, Reauthorization and Improvement of Mentor-Protégé Program, was published at 87 FR 52348, on August 25, 2022, effective 60 days later on October 24, 2022. Accordingly, the updated online DFARS part 219 and Appendix I changes are posted with this publication.

DFARS PGI ADMINISTRATIVE CHANGE:


1.  At DFARS PGI 222.17, Combating Trafficking in Persons, a new sample checklist is provided at the internet link.