[Federal Register Volume 73, Number 186 (Wednesday, September 24, 2008)]
[Proposed Rules]
[Pages 55007-55010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22419]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 237, 239, 245, and 252
RIN 0750-AF92
Defense Federal Acquisition Regulation Supplement; Government
Property (DFARS Case 2007-D020)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to update text addressing management of
Government property in the possession of contractors. The DFARS changes
are consistent with changes made to the Federal Acquisition Regulation
(FAR).
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before November 24, 2008, to be
considered in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2007-D020,
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: [email protected]. Include DFARS Case 2007-D020 in the subject
line of the message.
Fax: 703-602-7887.
Mail: Defense Acquisition Regulations System, Attn: Mr. Mark
Gomersall, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon,
Washington, DC 20301-3062.
Hand Delivery/Courier: Defense Acquisition Regulations System,
Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-
3402.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, 703-602-0302.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule updates and reorganizes DFARS Subparts 245.1,
245.3, 245.4, and 245.5 for consistency with FAR changes addressing
management of Government property in the possession of contractors,
published at 72 FR 27364 on May 15, 2007. Minor related changes are
made in Parts 204, 237, 239, and 252. The following table summarizes
the proposed DFARS changes:
[[Page 55008]]
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Existing DFARS citation Proposed change
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204.7003............................................... Remove ``facilities contracts'' from the list of
contract types, consistent with the removal of
references to facilities contracts from the FAR.
237.7003............................................... Update the reference to the applicable FAR Government
Property clause.
239.7402............................................... Update terminology and FAR references.
245.104................................................ Update and relocate to 245.105.
245.301................................................ (1) Update the definition of ``facilities project'' and
relocate to 245.101.
(2) Relocate the definition of ``mapping, charting, and
geodesy'' to 245.101 without change.
(3) Remove the definition of ``provide,'' since this
term is now defined in FAR 45.101.
(4) Remove the definitions of ``agency-peculiar
property,'' ``industrial plant equipment,'' and
``other plant equipment,'' as they are no longer
considered necessary.
245.302-1(a)........................................... Update and relocate to 245.102.
245.302-1(b) and DD Form 1419.......................... Remove. The specified equipment screening procedures
have become obsolete.
245.302-2 and 245.302-7................................ Remove. The separate procedures for facilities
contracts are no longer necessary.
245.303-2.............................................. Update and relocate to 245.102(3).
245.307-2.............................................. Remove. The corresponding FAR text has been removed.
245.310................................................ Update and relocate to 245.102(2).
245.310-70............................................. Relocate to 245.107-70.
245.401................................................ Update and relocate to 245.301(1).
245.403................................................ Relocate to 245.302(2).
245.405................................................ Update and relocate to 245.302(1) and (3).
245.407................................................ Update and relocate to 245.301. The dollar threshold
for requiring descriptive information on items of
Government property for which a contractor requests
non-Government use is increased from $25,000 to
$100,000. The item unique identification (IUID) number
and the item condition are added to the types of
information to be provided.
Subpart 245.5 and DD Form 1342......................... Remove as unnecessary.
Part 252............................................... Update references and clause titles.
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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 proposed 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.,
because the proposed rule makes no significant change to DoD policy
regarding the management of Government property in the possession of
contractors. 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 2007-D020.
C. Paperwork Reduction Act
The information collection requirements of DFARS Part 245 have been
approved by the Office of Management and Budget under Control Number
0704-0246.
List of Subjects in 48 CFR Parts 204, 237, 239, 245, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR parts 204, 237, 239, 245,
and 252 as follows:
1. The authority citation for 48 CFR parts 204, 237, 239, 245, and
252 continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 204--ADMINISTRATIVE MATTERS
2. Section 204.7003 is amended by revising paragraph (a)(3)(v) to
read as follows:
204.7003 Basic PII number.
(a) * * *
(3) * * *
(v) Reserved-E
* * * * *
PART 237--SERVICE CONTRACTING
3. Section 237.7003 is amended by revising paragraph (c) to read as
follows:
237.7003 Solicitation provisions and contract clauses.
* * * * *
(c) Use the clause at FAR 52.245-1, Government Property, with its
Alternate I, in solicitations and contracts that include port of entry
requirements.
PART 239--ACQUISITION OF INFORMATION TECHNOLOGY
4. Section 239.7402 is amended by revising paragraphs (b)(3) and
(4) to read as follows:
239.7402 Policy.
* * * * *
(b) * * *
(3) Except as provided in paragraph (b)(4) of this section,
contractors and subcontractors shall normally provide all required
property, to include telecommunications security equipment or related
devices, in accordance with FAR 45.102. In some cases, such as for
communications security (COMSEC) equipment designated as controlled
cryptographic item (CCI), contractors or subcontractors must also meet
ownership eligibility conditions.
(4) When the contractor or subcontractor does not meet ownership
eligibility conditions, the head of the agency may authorize provision
of the necessary property as Government-furnished property or
acquisition as contractor-acquired property, as long as conditions of
FAR 45.102(b) are met.
* * * * *
PART 245--GOVERNMENT PROPERTY
5. Subparts 245.1 and 245.3 are revised to read as follows:
Subpart 245.1--General
Sec.
245.101 Definitions.
245.102 Policy.
[[Page 55009]]
245.105 Contractor's property management system compliance.
245.107-70 Contract clause.
Subpart 245.1--General
245.101 Definitions.
As used in this part--
Facilities project means a Government project to provide,
modernize, or replace real property for use by a contractor in
performing a Government contract or subcontract.
Mapping, charting, and geodesy (MC&G) property is defined in the
clause at 252.245-7000, Government-Furnished Mapping, Charting, and
Geodesy Property.
245.102 Policy.
(1) Facilities projects.
(i) Comply with DoD Directive 4275.5, Acquisition and Management of
Industrial Resources, in processing requests for facilities projects.
Submit the request for approval to--
(A) The Secretary of the military department concerned, or the
director of the defense agency concerned, if the project--
(1) Is a research and development funded effort not exceeding $3
million per fiscal year;
(2) Is funded from procurement appropriations, is approved on a
location basis, and does not exceed $5 million for all property efforts
during one fiscal year; or
(3) Is in support of a major system or subsystem (including
ammunition-related projects) and the total investment will not exceed
$25 million during the projected acquisition or maintenance effort; or
(B) The Deputy Under Secretary of Defense (Industrial Affairs and
Installations) if the project exceeds the limitations in paragraph
(1)(i)(A) of this section.
(ii) Departments and agencies shall submit reports of facilities
projects to the House and Senate Armed Services Committees--
(A) At least 30 days before starting facilities projects involving
real property (10 U.S.C. 2662); and
(B) In advance of starting construction for a facilities project
regardless of cost. Use DD Form 1391, FY----Military Construction
Project Data, to notify congressional committees of projects that are
not included in the annual budget.
(2) Mapping, charting, and geodesy property. All Government-
furnished mapping, charting, and geodesy (MC&G) property is under the
control of the Director, National Geospatial Intelligence Agency.
(i) MC&G property shall not be duplicated, copied, or otherwise
reproduced for purposes other than those necessary for contract
performance.
(ii) Upon completion of contract performance, the contracting
officer shall--
(A) Contact the Director, National Geospatial Intelligence Agency,
4600 Sangamore Road, Bethesda, MD 20816-5003, for disposition
instructions;
(B) Direct the contractor to destroy or return all Government-
furnished MC&G property not consumed during contract performance; and
(C) Specify the destination and means of shipment for property to
be returned to the Government.
(3) Government supply sources. When a contractor will be
responsible for preparing requisitioning documentation to acquire
Government-furnished property from Government supply sources, include
in the contract the requirement to prepare the documentation in
accordance with DoD 4000.25-1-M, Military Standard Requisitioning and
Issue Procedures (MILSTRIP). Copies are available from the address
cited at PGI 251.102.
245.105 Contractor's property management system compliance.
The property administrator shall perform property administration in
accordance with department or agency procedures.
245.107-70 Contract clause.
Use the clause at 252.245-7000, Government-Furnished Mapping,
Charting, and Geodesy Property, in solicitations and contracts when
mapping, charting, and geodesy property is to be furnished.
Subpart 245.3--Authorizing the Use and Rental of Government Property
Sec.
245.301 Use and rental.
245.302 Contracts with foreign governments or international
organizations.
Subpart 245.3--Authorizing the Use and Rental of Government Property
245.301 Use and rental.
(1) Government use, as used in this subpart, includes use on
contracts for foreign military sales. Also see 245.302.
(2) Authorizing non-Government use.
(i) Non-Government use of Government-owned equipment exceeding 25
percent of the total use for Government and commercial work requires
prior approval of the--
(A) Assistant Secretary of the Army (AL&T);
(B) Assistant Secretary of the Navy (RD&A);
(C) Assistant Secretary of the Air Force (Acquisition); or
(D) Director, Defense Logistics Agency.
(ii) The authority in paragraph (2)(i) of this section may be
delegated to the head of a contracting activity. Any redelegation
requires the approval of the Deputy Under Secretary of Defense
(Industrial Affairs and Installations).
(iii) To determine the percentage of non-Government use--
(A) Compute the percentage of non-Government use on time available
for use. Use the contractor's normal work schedule as represented by
the scheduled production shift hours;
(B) Use a base time period that is neither less than three months
nor more than one year; and
(C) Use may be averaged at a single plant for all items costing
less than $25,000.
(iv) Contractors should submit requests for non-Government use of
Government-owned equipment to the contract administration office at
least six weeks before the projected use. The request shall include--
(A) The total number of items of Government equipment requested for
use and the acquisition cost of each item; and
(B) For each item of Government equipment with an acquisition cost
of $100,000 or more, an itemized list including nomenclature, item
unique identification (IUID) number if known, condition, year of
manufacture, and acquisition cost.
(v) Approving officials shall retain for periodic review,
documentation of the circumstances justifying non-Government use of
Government property.
245.302 Contracts with foreign governments or international
organizations.
(1) General.
(i) Approval. A contractor may use Government property on work for
foreign governments and international organizations only when approved
in writing by the contracting officer having cognizance of the
property. The contracting officer shall grant approval only if--
(A) The use will not interfere with foreseeable requirements of the
United States;
(B) The work is undertaken as a DoD foreign military sale; or
(C) For a direct commercial sale, the foreign country or
international organization would be authorized to contract with the
department concerned under the Arms Export Control Act.
(ii) Use charges.
(A) The Use and Charges clause is applicable on direct commercial
sales to
[[Page 55010]]
foreign governments or international organizations.
(B) When a particular foreign government or international
organization has funded the acquisition of specific production and
research property, do not assess the foreign government or
international organization rental charges or nonrecurring recoupments
for the use of such property.
(2) Special tooling and special test equipment.
(i) DoD normally recovers a fair share of nonrecurring costs of
special tooling and special test equipment by including these costs in
its calculation of the nonrecurring cost recoupment charge when major
defense equipment is sold by foreign military sales or direct
commercial sales to foreign governments or international organizations.
``Major defense equipment'' is defined in DoD Directive 2140.2,
Recoupment of Nonrecurring Costs on Sales of U.S. Items, as any item of
significant military equipment on the United States Munitions List
having a nonrecurring research, development, test, and evaluation cost
of more than $50 million or a total production cost of more than $200
million.
(ii) When the cost thresholds in paragraph (2)(i) of this section
are not met, the contracting officer shall assess rental charges for
use of special tooling and special test equipment pursuant to the Use
and Charges clause if administratively practicable.
(3) Waivers.
(i) Rental charges for use of U.S. production and research property
on commercial sales transactions to the Government of Canada are waived
for all commercial contracts. This waiver is based on an understanding
wherein the Government of Canada has agreed to waive its rental
charges.
(ii) Requests for waiver or reduction of charges for the use of
Government property on work for foreign governments or international
organizations shall be submitted to the contracting officer, who shall
refer the matter through contracting channels. In response to these
requests, approvals may be granted only by the Director, Defense
Security Cooperation Agency, for particular sales that are consistent
with paragraph (1)(i)(C) of this section.
Subparts 245.4 and 245.5 [Removed]
6. Subparts 245.4 and 245.5 are removed.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.217-7005 [Amended]
7. Section 252.217-7005 is amended as follows:
a. By revising the clause date to read ``(XXX 2008)''; and
b. In paragraph (e)(7) by removing ``(Fixed-Price Contracts)''.
252.217-7010 [Amended]
8. Section 252.217-7010 is amended as follows:
a. By revising the clause date to read ``(XXX 2008)''; and
b. In paragraph (c)(3) by removing ``(Fixed Price Contracts)''.
252.242-7004 [Amended]
9. Section 252.242-7004 is amended as follows:
a. By revising the clause date to read ``(XXX 2008)''; and
b. In paragraph (e)(9) introductory text, in the first sentence, by
removing ``Regardless of the provisions of FAR 45.505-3(f)(1)(ii),
have'' and adding in its place ``Have''.
252.245-7000 [Amended]
10. Section 252.245-7000 is amended as follows:
a. By revising the clause date to read ``(XXX 2008)''; and
b. In the introductory text by removing ``245.310-70'' and adding
in its place ``245.107-70''.
[FR Doc. E8-22419 Filed 9-23-08; 8:45 am]
BILLING CODE 5001-08-P