[Federal Register: August 12, 2008 (Volume 73, Number 156)]
[Rules and Regulations]               
[Page 46814-46816]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au08-7]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203, 250, and 252

RIN 0750-AG01

 
Defense Federal Acquisition Regulation Supplement; Conforming 
Changes--Standards of Conduct and Extraordinary Contractual Actions 
(DFARS Case 2008-D004)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD has issued a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to update text addressing 
contractor standards of conduct and the handling of extraordinary 
contractual actions. The DFARS changes are consistent with changes made 
to the Federal Acquisition Regulation.

DATES: Effective Date: August 12, 2008.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone 703-602-0328; facsimile 
703-602-7887. Please cite DFARS Case 2008-D004.

SUPPLEMENTARY INFORMATION: 

A. Background

    This final rule updates DFARS text for consistency with changes 
made to the Federal Acquisition Regulation (FAR) as follows:
    [cir] Removes DFARS Subpart 203.70, Contractor Standards of 
Conduct, and the corresponding contract clause at 252.203-7002, since 
policy on this subject was added to the FAR at 72 FR 65873 on November 
23, 2007.
    [cir] Adds DFARS 203.1004 to provide address information for use in 
completion of the clause at FAR 52.203-14, Display of Hotline 
Poster(s).
    [cir] Revises DFARS Part 250 for consistency with the structure of 
FAR Part 50, as revised at 72 FR 63027 on November 7, 2007. The DFARS 
changes update headings, numbering, and cross-references, and reflect 
the dollar threshold currently specified in the FAR with regard to 
delegation of authority for approval of extraordinary contractual 
actions.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

[[Page 46815]]

B. Regulatory Flexibility Act

    This rule will not have a significant cost or administrative impact 
on contractors or offerors, or a significant effect beyond the internal 
operating procedures of DoD. Therefore, publication for public comment 
under 41 U.S.C. 418b is not required. However, DoD will consider 
comments from small entities concerning the affected DFARS subparts in 
accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 
2008-D004.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply, because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Parts 203, 250, and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

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Therefore, 48 CFR parts 203, 250, and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 203, 250, and 252 continues 
to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

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2. Subpart 203.10 is added to read as follows:

Subpart 203.10--Contractor Code of Business Ethics and Conduct


203.1004  Contract clauses.

    (b)(2)(ii) Insert the following address in paragraph (b)(3) of the 
clause at FAR 52.203-14, Display of Hotline Poster(s): DoD Inspector 
General, ATTN: Defense Hotline, 400 Army Navy Drive, Washington, DC 
22202-2884.

Subpart 203.70 [Removed]

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3. Subpart 203.70 is removed.

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4. Part 250 is revised to read as follows:

PART 250--EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

Subpart 250.1--Extraordinary Contractual Actions

Sec.
250.100 Definitions.
250.101 General.
250.101-2 Policy.
250.101-2-70 Limitations on payment.
250.101-3 Records.
250.102 Delegation of and limitations on exercise of authority.
250.102-1 Delegation of authority.
250.102-1-70 Delegations.
250.102-2 Contract adjustment boards.
250.103 Contract adjustments.
250.103-3 Contract adjustment.
250.103-5 Processing cases.
250.103-6 Disposition.
250.104 Residual powers.
250.104-3 Special procedures for unusually hazardous or nuclear 
risks.
250.104-3-70 Indemnification under contracts involving both research 
and development and other work.

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

Subpart 250.1--Extraordinary Contractual Actions


250.100  Definitions.

    Secretarial level, as used in this subpart, means--
    (1) An official at or above the level of an Assistant Secretary (or 
Deputy) of Defense or of the Army, Navy, or Air Force; and
    (2) A contract adjustment board established by the Secretary 
concerned.


250.101  General.


250.101-2  Policy.


250.101-2-70  Limitations on payment.

    See 10 U.S.C. 2410(b) for limitations on Congressionally directed 
payment of a request for equitable adjustment to contract terms or a 
request for relief under Public Law 85-804.


250.101-3  Records.

    Follow the procedures at PGI 250.101-3 for preparation of records.


250.102  Delegation of and limitations on exercise of authority.


250.102-1  Delegation of authority.

    (b) Authority under FAR 50.104 to approve actions obligating 
$55,000 or less may not be delegated below the level of the head of the 
contracting activity.
    (d) In accordance with the acquisition authority of the Under 
Secretary of Defense (Acquisition, Technology, and Logistics (USD 
(AT&L)) under 10 U.S.C. 133, in addition to the Secretary of Defense 
and the Secretaries of the military departments, the USD (AT&L) may 
exercise authority to indemnify against unusually hazardous or nuclear 
risks.


250.102-1-70  Delegations.

    (a) Military departments. The Departments of the Army, Navy, and 
Air Force will specify delegations and levels of authority for actions 
under the Act and the Executive Order in departmental supplements or 
agency acquisition guidance.
    (b) Defense agencies. Subject to the restrictions on delegations of 
authority in 250.102-1(b) and FAR 50.102-1, the directors of the 
defense agencies may exercise and redelegate the authority contained in 
the Act and the Executive Order. The agency supplements or agency 
acquisition guidance shall specify the delegations and levels of 
authority.
    (1) Requests to obligate the Government in excess of $55,000 must 
be submitted to the USD (AT&L) for approval.
    (2) Requests for indemnification against unusually hazardous or 
nuclear risks must be submitted to the USD(AT&L) for approval before 
using the indemnification clause at FAR 52.250-1, Indemnification Under 
Public Law 85-804.
    (c) Approvals. The Secretary of the military department or the 
agency director must approve any delegations in writing.


250.102-2  Contract adjustment boards.

    The Departments of the Army, Navy, and Air Force each have a 
contract adjustment board. The board consists of a Chair and not less 
than two nor more than six other members, one of whom may be designated 
the Vice-Chair. A majority constitutes a quorum for any purpose and the 
concurring vote of a majority of the total board membership constitutes 
an action of the board. Alternates may be appointed to act in the 
absence of any member.


250.103  Contract adjustments.


250.103-3  Contract adjustment.

    (a) Contractor requests should be filed with the procuring 
contracting officer (PCO). However, if filing with the PCO is 
impractical, requests may be filed with an authorized representative, 
an administrative contracting officer, or the Office of General Counsel 
of the applicable department or agency, for forwarding to the cognizant 
PCO.


250.103-5  Processing cases.

    (1) At the time the request is filed, the activity shall prepare 
the record described at PGI 250.101-3(1)(i) and forward it to the 
appropriate official within 30 days after the close of the month in 
which the record is prepared.
    (2) The officer or official responsible for the case shall forward 
to the contract adjustment board, through departmental channels, the 
documentation described at PGI 250.103-5.

[[Page 46816]]

    (3) Contract adjustment boards will render decisions as 
expeditiously as practicable. The Chair shall sign a memorandum of 
decision disposing of the case. The decision shall be dated and shall 
contain the information required by FAR 50.103-6. The memorandum of 
decision shall not contain any information classified ``Confidential'' 
or higher. The board's decision will be sent to the appropriate 
official for implementation.


250.103-6  Disposition.

    For requests denied or approved below the Secretarial level, follow 
the disposition procedures at PGI 250.103-6.


250.104  Residual powers.


250.104-3  Special procedures for unusually hazardous or nuclear risks.


250.104-3-70  Indemnification under contracts involving both research 
and development and other work.

    When indemnification is to be provided on contracts requiring both 
research and development work and other work, the contracting officer 
shall insert an appropriate clause using the authority of both 10 
U.S.C. 2354 and Public Law 85-804.
    (a) The use of Public Law 85-804 is limited to work which cannot be 
indemnified under 10 U.S.C. 2354 and is subject to compliance with FAR 
50.104.
    (b) Indemnification under 10 U.S.C. 2354 is covered by 235.070.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.203-7002  [Removed]

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5. Section 252.203-7002 is removed.

[FR Doc. E8-18504 Filed 8-11-08; 8:45 am]

BILLING CODE 5001-08-P