[Federal Register: September 16, 2005 (Volume 70, Number 179)]
[Proposed Rules]
[Page 54698-54699]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



48 CFR Parts 239 and 252

[DFARS Case 2003-D068]

Defense Federal Acquisition Regulation Supplement; Acquisition of
Information Technology

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.


SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to update text on the acquisition of
information technology. This proposed rule is a result of a
transformation initiative undertaken by DoD to dramatically change the
purpose and content of the DFARS.

DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before November 15, 2005, to be
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D068,
using any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.
    [cir] Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.
 Follow the instructions for

submitting comments.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2003-D068 in the
subject line of the message.
    [cir] Fax: (703) 602-0350.
    [cir] Mail: Defense Acquisition Regulations Council, Attn: Ms.
Gabrielle Ward, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
    [cir] Hand Delivery/Courier: Defense Acquisition Regulations
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
    All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf

FOR FURTHER INFORMATION CONTACT: Ms. Gabrielle Ward, (703) 602-2022.


A. Background

    DFARS Transformation is a major DoD initiative to dramatically
change the purpose and content of the DFARS. The objective is to
improve the efficiency and effectiveness of the acquisition process,
while allowing the acquisition workforce the flexibility to innovate.
The transformed DFARS will contain only requirements of law, DoD-wide
policies, delegations of FAR authorities, deviations from FAR
requirements, and policies/procedures that have a significant effect
beyond the internal operating procedures of DoD or a significant cost
or administrative impact on contractors or offerors. Additional
information on the DFARS Transformation initiative is available at

    This proposed rule is a result of the DFARS Transformation
initiative. The proposed DFARS changes--
    [cir] Remove text that is obsolete or unnecessary;
    [cir] Clarify text addressing charges for special construction or
assembly related to telecommunications services;
    [cir] Clarify the text of clauses used in basic agreements for
telecommunications services; and
    [cir] Remove text addressing the acquisition of telecommunications
services from foreign carriers. Text on this subject will be relocated
to the new DFARS companion resource, Procedures, Guidance, and
Information (PGI). Additional information on PGI is available at http://www.acq.osd.mil/dpap/dars/pgi

    This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,

[[Page 54699]]

because the rule updates and clarifies DFARS text, but makes no
significant change to DoD policy for the acquisition of information
technology. Therefore, DoD has not performed an initial regulatory
flexibility analysis. DoD invites comments from small businesses and
other interested parties. DoD also will consider comments from small
entities concerning the affected DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be submitted separately and should
cite DFARS Case 2003-D068.

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 Part 239

    Government procurement.

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

    Therefore, DoD proposes to amend 48 CFR part 239 as follows:
    1. The authority citation for 48 CFR part 239 continues to read as

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


239.7200  [Removed]

    2. Section 239.7200 is removed.
    3. Section 239.7201 is added to read as follows:

239.7201  Solicitation requirements.

    Contracting officers shall ensure that all applicable Federal
Information Processing Standards are incorporated into solicitations.

239.7202  [Removed]

    4. Section 239.7202 is removed.
    5. Section 239.7400 is amended by revising the second sentence to
read as follows:

239.7400  Scope.

    * * * Telecommunications services meet the definition of
information technology.
    6. Section 239.7402 is amended by revising paragraph (a) and adding
paragraph (c) to read as follows:

239.7402  Policy.

    (a) Acquisition. DoD policy is to acquire telecommunications
services from common and noncommon telecommunications carriers--
    (1) On a competitive basis, except when acquisition using other
than full and open competition is justified;
    (2) Recognizing the regulations, practices, and decisions of the
Federal Communications Commission (FCC) and other governmental
regulatory bodies on rates, cost principles, and accounting practices;
    (3) Making provision in telecommunications services contracts for
adoption of--
    (i) FCC approved practices; or
    (ii) The generally accepted practices of the industry on those
issues concerning common carrier services where--
    (A) The governmental regulatory body has not expressed itself;
    (B) The governmental regulatory body has declined jurisdiction; or
    (C) There is no governmental regulatory body to decide.
* * * * *
    (c) Foreign carriers. For information on contracting with foreign
carriers, see PGI 239.7402(c).

239.7403 and 239.7404  [Removed and Reserved]

    7. Sections 239.7403 and 239.7404 are removed and reserved.
    8. Section 239.7406 is amended by revising paragraph (c) to read as

239.7406  Cost or pricing data and information other than cost or
pricing data.

* * * * *
    (c) Contracting officers shall obtain sufficient information to
determine that the prices are reasonable in accordance with FAR 15.403-
3 or 15.403-4.
    9. Section 239.7408-1 is amended in paragraph (e) by revising the
last sentence to read as follows:

239.7408-1  General.

* * * * *
    (e) * * * The contracting officer must approve special construction
charges before final payment.
    10. Section 239.7408-2 is amended by revising paragraph (a) to read
as follows:

239.7408-2  Applicability of construction labor standards for special

    (a) The construction labor standards in FAR Subpart 22.4 ordinarily
do not apply to special construction. However, if the special
construction includes construction, alteration, or repair (as defined
in FAR 22.401) of a public building or public work, the construction
labor standards may apply. Determine applicability under FAR 22.402.
* * * * *
    11. Section 239.7409 is amended in paragraph (b) by revising the
second sentence to read as follows:

239.7409  Special assembly.

* * * * *
    (b) * * * The contracting officer should negotiate special assembly
rates and charges before starting service. * * *
    12. Section 239.7411 is amended by revising paragraph (d) to read
as follows:

239.7411  Contract clauses.

* * * * *
    (d) Use the clause at 252.239-7016, Telecommunications Security
Equipment, Devices, Techniques, and Services, in solicitations and
contracts when performance of a contract requires secure

Subpart 239.75 [Removed]

    13. Subpart 239.75 is removed.


    14. Section 252.239-7013 is revised to read as follows:

252.239-7013  Obligation of the Government.

    As prescribed in 239.7411(c), use the following clause:


    (a) This basic agreement is not a contract. The Government
incurs no monetary liability under this agreement.
    (b) The Government incurs liability only upon issuance of a
communications service authorization, which is the contract and
incorporates the terms of this agreement.
     (End of clause)

    15. Section 252.239-7015 is revised to read as follows:

252.239-7015  Continuation of Communication Service Authorizations.

    As prescribed in 239.7411(c), use the following clause:


    (a) All communication service authorizations issued by --------
---- incorporating Basic Agreement Number --------, dated ----------
--, are modified to incorporate this basic agreement.
    (b) Communication service authorizations currently in effect
which were issued by the activity in paragraph (a) of this clause
incorporating other agreements with the Contractor may also be
modified to incorporate this agreement.
    (c) This basic agreement is not a contract.
     (End of clause)
[FR Doc. 05-18474 Filed 9-15-05; 8:45 am]