[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Rules and Regulations]
[Pages 54524-54526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22226]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 211 and 237
RIN 0750-AG72
Defense Federal Acquisition Regulation Supplement; Guidance on
Personal Services (DFARS Case 2009-D028)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to enable further
implementation of section 831 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009 to require DoD to develop
guidance related to personal services contracts.
DATES: Effective Date: September 8, 2010.
Comment Date: Comments on the interim rule should be submitted in
writing to the address shown below on or before November 8, 2010, to be
considered in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2009-D028, using
any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: [email protected]. Include DFARS Case 2009-D028 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Meredith
Murphy, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to
verify posting (except allow 30 days for posting of comments submitted
by mail).
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FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile
703-602-0350.
SUPPLEMENTARY INFORMATION:
A. Background
Section 831 of the Duncan Hunter National Defense Authorization Act
for Fiscal Year 2009 (Pub. L. 110-417), Development of Guidance on
Personal Services Contracts, required DoD to mitigate the risks
associated with personal services by developing guidance enabling
contracting officers to better distinguish between personal services
and non-personal services. Recommendations by the Office of the DoD
Inspector General have highlighted the need for additional clarity in
this area.
DFARS parts 211 and 237 are being amended to (1) require that
statements of work or performance work statements clearly distinguish
between Government employees and contractor employees and (2) ensure
that procedures are adopted to prevent contracts from being awarded or
administered as unauthorized personal services contracts. These
Government procedures include an internal requirement that a program
manager, or equivalent, certification that the service contract
requirement does not include an unauthorized personal services
arrangement be included in the contract file.
DoD reviewed guidance in use throughout the Department, including
several checklists currently used. This interim rule adopts best
practices and implements a requirement for the program manager, or
equivalent, to complete and submit a certification to the contracting
officer with a services contract requirement. A new DFARS section
211.106, Purchase descriptions for service contracts, is added to
require that purchase descriptions for service contracts clearly
distinguish between Government employees and contractor employees. In
addition, a new section 237.503, Agency-head responsibilities, is added
to require DoD agencies to adopt procedures that (1) ensure service
contract requirements are vetted and approved in a manner that will
prevent them from being awarded or administered as unauthorized
personal services contracts, and (2) require a program manager, or
equivalent, certification to be completed and provided to the
contracting officer as part of the service contract procurement
request, for inclusion in the contract file, that the service contract
requirement does not include an unauthorized personal services
arrangement, either in the way the work statement is written or in the
manner in which the resulting contract will be managed and overseen.
The certification requirement is designed to ensure that the
prohibitions against personal services contracting in law (e.g., 10
U.S.C. 129b, 5 U.S.C. 3109, or 10 U.S.C. 1091) are not violated.
This is a significant regulatory action, and therefore, was subject
to review under section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 604.
C. Regulatory Flexibility Act
DoD does not expect this interim 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 section 831 affects only internal government operations and
procedures. The interim rule does not impose any additional
requirements on small businesses. Therefore, an initial regulatory
flexibility analysis has not been performed. DoD invites comments from
small business concerns and other interested parties on the expected
impact of this rule on small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D028) in
correspondence.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
E. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule without prior opportunity for public comment pursuant to
U.S.C. 418b and FAR 1.501-3(b). This action is necessary because the
statute became effective upon enactment on October 14, 2008, and it is
imperative that DoD program managers and contracting officers be
provided with the means to distinguish between personal and non-
personal services. However, DoD will consider public comments received
in response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 211 and 237
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 211 and 237 are amended as follows:
0
1. The authority citation for 48 CFR parts 211 and 237 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 211--DESCRIBING AGENCY NEEDS
0
2. Section 211.106 is added to read as follows:
211.106 Purchase descriptions for service contracts.
Agencies shall require that purchase descriptions for service
contracts and resulting requirements documents, such as statements of
work or performance work statements, include language to provide a
clear distinction between Government employees and contractor
employees. Service contracts shall require contractor employees to
identify themselves as contractor personnel by introducing themselves
or being introduced as contractor personnel and by displaying
distinguishing badges or other visible identification for meetings with
Government personnel. In addition, contracts shall require contractor
personnel to appropriately identify themselves as contractor employees
in telephone conversations and in formal and informal written
correspondence.
PART 237--SERVICE CONTRACTING
0
3. Subpart 237.5 is added to read as follows:
Subpart 237.5--Management Oversight of Service Contracts
237.503 Agency-head responsibilities.
(c) The agency head or designee shall employ procedures to ensure
that requirements for service contracts are vetted and approved as a
safeguard to prevent contracts from being awarded or administered in a
manner that constitutes an unauthorized personal services contract.
Contracting officers shall follow the procedures at PGI 237.503,
include substantially similar certifications in conjunction with
service contract requirements, and place the certification in the
contract file. The
[[Page 54526]]
program manager or other official responsible for the requirement, at a
level specified by the agency, should execute the certification.
[FR Doc. 2010-22226 Filed 9-7-10; 8:45 am]
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