[Federal Register: March 21, 2006 (Volume 71, Number 54)]
[Rules and Regulations]               
[Page 14102-14104]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21mr06-10]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 207, 208, 216, 217, and 237

[DFARS Case 2002-D024]

 
Defense Federal Acquisition Regulation Supplement; Approval of 
Service Contracts and Task and Delivery Orders

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

ACTION: Final rule.

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SUMMARY: DoD has adopted as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement Section 801(b) of the National Defense Authorization Act 
for Fiscal Year 2002 and Section 854 of the National Defense 
Authorization Act for Fiscal Year 2005. Section 801(b) requires DoD to 
establish and implement a management structure for the procurement of 
services. Section 854 requires DoD agencies to comply with certain 
review and approval requirements before using a non-DoD

[[Page 14103]]

contract to procure supplies or services in amounts exceeding the 
simplified acquisition threshold.

DATES: Effective March 21, 2006.

FOR FURTHER INFORMATION CONTACT: Ms. Robin Schulze, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; 
facsimile (703) 602-0350. Please cite DFARS Case 2002-D024.

SUPPLEMENTARY INFORMATION: 

A. Background

    DoD published an interim rule at 68 FR 56563 on October 1, 2003, to 
implement Section 801(b) of the National Defense Authorization Act for 
Fiscal Year 2002 (Pub. L. 107-107). The rule established requirements 
for DoD to obtain certain approvals before acquiring services through 
use of a DoD contract or task order that is not performance based, or 
through any contract or task order that is awarded by an agency other 
than DoD.
    Section 854 of the National Defense Authorization Act for Fiscal 
Year 2005 (Pub. L. 108-375) placed additional restrictions on the use 
of contracts awarded by an agency other than DoD in amounts exceeding 
the simplified acquisition threshold. DoD published a second interim 
rule at 70 FR 29640 on May 24, 2005, containing changes resulting from 
public comments received on the interim rule published on October 1, 
2003; changes implementing Section 854 of Public Law 108-375; and 
changes implementing the requirements of a DoD policy memorandum dated 
October 29, 2004, on the proper use of non-DoD contracts for the 
acquisition of supplies and services.
    One industry association submitted comments on the interim rule 
published on May 24, 2005. The association supported the rule, but 
provided additional comments containing suggestions for improvement. A 
discussion of the comments is provided below.
    1. Comment: DoD should extend the requirements of the rule to task 
and delivery orders placed by DoD under another defense agency's 
contract.
    DoD Response: The rule is intended to resolve specific systemic 
problems regarding the use of non-DoD contracts, i.e., orders placed 
under non-DoD contracts were not consistent with DoD-unique statutory 
and regulatory requirements. DoD is not aware of any similar problems 
for direct or assisted buys under DoD contracts. DoD believes that the 
existing controls and procedures are adequate to ensure that orders 
placed by DoD under DoD contracts are consistent with DoD-unique 
statutory and regulatory requirements.
    2. Comment: The rule would be stronger if the requirement at DFARS 
207.105(b)(4), to document in the acquisition plan the method to be 
used to ensure that orders under non-DoD contracts are consistent with 
DoD-unique statutory and regulatory requirements, also said ``including 
the review and approval requirements of Subpart 217.78.''
    DoD Response: DFARS Subpart 217.78 requires agencies to establish 
and maintain procedures for reviewing and approving orders under non-
DoD contracts. It does not contain the specific review and approval 
requirements, which vary by department and agency. This DFARS rule 
requires contracting officers to address the method of ensuring that 
statutory and regulatory requirements will be met, which should be 
consistent with the agency procedures established in accordance with 
Subpart 217.78.
    3. Comment: DoD should promptly create accompanying Procedures, 
Guidance, and Information (PGI) coverage, particularly for the data 
collection elements required by DFARS 217.7802(e).
    DoD Response: DoD has established corresponding PGI coverage at 
http://www.acq.osd.mil/dpap/dars/pgi/index.htm (PGI 217.7802(e)) to 

address requirements for reporting of data on the use of assisted 
acquisition. In addition, DoD has amended the DFARS rule at 
208.404(a)(i), 216.505(1), 217.7802(e), and 237.170-2(b) to add 
references to these reporting requirements.
    4. Comment: The supplementary information accompanying the final 
rule should address the memorandum issued by the Director of Defense 
Procurement and Acquisition Policy on June 17, 2005, entitled ``Proper 
Use of Non-DoD Contracts,'' and the supplemental memoranda issued by 
the military departments and defense agencies.
    DoD Response: The new PGI coverage contains a link to the Defense 
Procurement and Acquisition Policy Web site on Proper Use of Non-DoD 
Contract Vehicles at http://www.acq.osd.mil/dpap/specificpolicy/index.htm.
 This Web site contains links to the referenced memoranda and 

other relevant information.
    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 certifies that this final rule will not 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., 
because the rule contains internal DoD approval requirements, intended 
to ensure that acquisitions of supplies and services are accomplished 
in accordance with existing statutes and regulations.

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 207, 208, 216, 217, and 237

    Government procurement.

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

0
Accordingly, the interim rule amending 48 CFR part 237, which was 
published at 68 FR 56563 on October 1, 2003, and the interim rule 
amending 48 CFR parts 207, 208, 216, 217, and 237, which was published 
at 70 FR 29640 on May 24, 2005, are adopted as a final rule with the 
following changes:
0
1. The authority citation for 48 CFR parts 207, 208, 216, 217, and 237 
continues to read as follows:

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

PART 208--REQUIRED SOURCES OF SUPPLIES AND SERVICES

0
2. Section 208.404 is amended by revising the section heading and 
paragraph (a)(i) to read as follows:


208.404  Use of Federal Supply Schedules.

    (a)(i) Departments and agencies shall comply with the review, 
approval, and reporting requirements established in accordance with 
subpart 217.78 when placing orders for supplies or services in amounts 
exceeding the simplified acquisition threshold.
* * * * *

PART 216--TYPES OF CONTRACTS

0
3. Section 216.505 is amended by revising paragraph (1) to read as 
follows:


216.505  Ordering.

    (1) Departments and agencies shall comply with the review, 
approval, and reporting requirements established in accordance with 
Subpart 217.78 when placing orders under non-DoD contracts

[[Page 14104]]

in amounts exceeding the simplified acquisition threshold.
* * * * *

PART 217--SPECIAL CONTRACTING METHODS

0
4. Section 217.7802 is amended by revising paragraph (e) to read as 
follows:


217.7802  Policy.

* * * * *
    (e) Collecting and reporting data on the use of assisted 
acquisition for analysis. Follow the reporting requirements at PGI 
217.7802.

PART 237--SERVICE CONTRACTING

0
5. Section 237.170-2 is amended by revising paragraph (b) to read as 
follows:


237.170-2  Approval requirements.

* * * * *
    (b) Acquisition of services through use of a contract or task order 
issued by a non-DoD agency. Comply with the review, approval, and 
reporting requirements established in accordance with Subpart 217.78 
when acquiring services through use of a contract or task order issued 
by a non-DoD agency.

[FR Doc. 06-2644 Filed 3-20-06; 8:45 am]

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