[Federal Register Volume 75, Number 205 (Monday, October 25, 2010)]
[Rules and Regulations]
[Pages 65439-65441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26718]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 219 and 252
[DFARS Case 2009-D002]
Defense Federal Acquisition Regulation Supplement; Electronic
Subcontracting Reporting System
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Defense Acquisition Regulation
Supplement (DFARS) to conform to the Federal Acquisition Regulation
(FAR) by providing Department of Defense (DoD)-specific policy and
procedures related to the Electronic Subcontracting Reporting System
(eSRS). The FAR has been revised to reflect use of the eSRS, rather
than Standard Form 294--Subcontract Report for Individual Contracts,
and Standard Form 295--Summary Subcontract Report, for submission of
small business subcontract reports.
DATES: Effective date: October 25, 2010.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before December 27, 2010, to
be considered in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2009-D002,
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-D002 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Cassandra R. Freeman, OUSD (AT&L) DPAP (DARS), 3060 Defense Pentagon,
Room 3B855, Washington, DC 20301-3060.
All comments received will be posted to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Cassandra R. Freeman, Defense
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), 3060 Defense
Pentagon, Room 3B855, Washington, DC 20301-3060, Telephone 703-602-
8383; facsimile(703)602-0350. Please cite DFARS Case 2009-D002.
SUPPLEMENTARY INFORMATION:
A. Background
This DFARS case is the companion case to FAR Case 2005-040
Electronic Subcontracting Reporting System. This DFARS interim rule
amends sections 219.708 and 252.219 to provide DoD-specific procedures
and policies related to DoD's implementation of eSRS.
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., because small
businesses are not required to have subcontracting plans and,
therefore, are not required to use eSRS to submit reports on their
progress in achieving the goals in those plans.
Therefore, DoD has not performed an initial regulatory flexibility
analysis. 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-D002 in
correspondence.
C. Paperwork Reduction Act
This interim rule does not impose any new information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq. This rule provides DoD
instructions on how to submit reports that are already required by the
FAR and are covered under Office of Management and Budget Clearance
Numbers 9000-0006 and 9000-0007.
D. 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 prior to affording the public an opportunity to comment.
The FAR already requires the use of eSRS for submission of
subcontracting reports. This interim rule provides to DoD contractors
the DoD-specific policies and procedures that they must follow in order
to be able to submit subcontract reports using eSRS, as required by the
FAR.
[[Page 65440]]
List of Subjects in 48 CFR Parts 219 and 252
Government procurement.
Clare M. Zebrowski,
Editor, Defense Acquisition Regulations System.
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Therefore, 48 CFR parts 219 and 252 are amended as follows:
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1. The authority citation for 48 CFR parts 219 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 219--SMALL BUSINESS PROGRAMS
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2. Section 219.708 is amended by revising paragraph (b)(1) to read as
follows:
219.708 Contract clauses.
(b)(1)(A) Use the clause at 252.219-7003, Small Business
Subcontracting Plan (DoD Contracts)--
(1) In solicitations and contracts that contain the clause at FAR
52.219-9, Small Business Subcontracting Plan.
(2) With its Alternate I in contracts that use Alternate III of
52.219-9, Small Business Subcontracting Plan.
(B) In contracts with contractors that have comprehensive
subcontracting plans approved under the test program described in
219.702, use the clause at 252.219-7004, Small Business Subcontracting
Plan (Test Program), instead of the clauses at 252.219-7003, Small
Business Subcontracting Plan (DoD Contracts), and FAR 52.219-9, Small
Business Subcontracting Plan. Include --
(1) FAR clause 52.219-9, Small Business Subcontracting Plan and
252.219-7003 in the contract for purposes of the contractor flowing
these clauses down to subcontractors, except
(2) When the contract will not be reported in FPDS (see FAR 4.606
(c)(5)), include FAR clause 52.219-9, Small Business Subcontracting
Plan with its Alternate III and 252.219-7003 Small Business
Subcontracting Plan (DoD Contracts) with its Alternate I in the
contract for purposes of the contractor flowing these clauses down to
subcontractors.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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3. Section 252.212-7001 is amended by revising the clause date to read
``(OCT 2010)'' in the clause title and paragraphs (b)(3) and (b)(4).
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4. Section 252.219-7003 is revised to read as follows:
252.219-7003 Small business subcontracting plan (DoD contracts).
As prescribed in 219.708(b)(1)(A)(1), use the following clause:
SMALL BUSINESS SUBCONTRACTING PLAN (DoD CONTRACTS) (OCT 2010)
This clause supplements the Federal Acquisition Regulation
52.219-9, Small Business Subcontracting Plan, clause of this
contract.
(a) Definitions. As used in this clause--
Historically black colleges and universities means institutions
determined by the Secretary of Education to meet the requirements of
34 CFR Section 608.2. The term also means any nonprofit research
institution that was an integral part of such a college or
university before November 14, 1986.
Minority institutions means institutions meeting the
requirements of Section 1046(3) of the Higher Education Act of 1965
(20 U.S.C. 1135d-5(3)). The term also includes Hispanic-serving
institutions as defined in Section 316(b)(1) of such Act (20 U.S.C.
1059c(b)(1)).
Summary Subcontract Report (SSR) Coordinator means the
individual at the department or agency level who is registered in
eSRS and is responsible for acknowledging receipt or rejecting SSRs
in eSRS for the department or agency.
(b) Except for company or division-wide commercial items
subcontracting plans, the term ``small disadvantaged business,''
when used in the FAR 52.219-9 clause, includes historically black
colleges and universities and minority institutions, in addition to
small disadvantaged business concerns.
(c) Work under the contract or its subcontracts shall be
credited toward meeting the small disadvantaged business concern
goal required by paragraph (d) of the FAR 52.219-9 clause when:
(1) It is performed on Indian lands or in joint venture with an
Indian Tribe or a Tribally-owned corporation, and
(2) It meets the requirements of 10 U.S.C. 2323a.
(d) Subcontracts awarded to workshops approved by the Committee
for Purchase from People Who are Blind or Severely Disabled (41
U.S.C. 46-48), may be counted toward the Contractor's small business
subcontracting goal.
(e) A mentor firm, under the Pilot Mentor-Protege Program
established under Section 831 of Public Law 101-510, as amended, may
count toward its small disadvantaged business goal, subcontracts
awarded--
(1) Protege firms which are qualified organizations employing
the severely handicapped; and
(2) Former protege firms that meet the criteria in Section
831(g)(4) of Public Law 101-510.
(f) The master plan is approval by the Contractor's cognizant
contract administration activity.
(g) In those subcontracting plans which specifically identify
small businesses, the Contractor shall notify the Administrative
Contracting Officer of any substitutions of firms that are not small
business firms, for the small business firms specifically identified
in the subcontracting plan. Notifications shall be in writing and
shall occur within a reasonable period of time after award of the
subcontract. Contractor-specified formats shall be acceptable.
(h)(1) For DoD, the Contractor shall submit reports in eSRS as
follows:
(i) The Individual Subcontract Report (ISR) shall be submitted
to the contracting officer at the procuring contracting office, even
when contract administration has been delegated to the Defense
Contract Management Agency.
(ii) An SSR for other than a commercial subcontracting plan, or
construction and related maintenance repair contracts, shall be
submitted in eSRS to the department or agency within DoD that
administers the majority of the Contractor's individual
subcontracting plans. An example would be Defense Finance and
Accounting Service or Missile Defense Agency.
(2) For DoD, the authority to acknowledge receipt or reject
reports in eSRS is as follows:
(i) The authority to acknowledge receipt or reject the ISR
resides with the contracting officer who receives it, as described
in paragraph (h)(1)(i) of this clause.
(ii) Except as provided in (h)(2)(iii), the authority to
acknowledge receipt or reject SSRs in eSRS resides with the SSR
Coordinator at the department or agency that administers the
majority of the Contractor's individual subcontracting plans.
(iii) The authority to acknowledge receipt or reject SSRs for
construction and related maintenance and repair contracts resides
with the SSR Coordinator for each department or agency.
(iv) The authority to acknowledge receipt or reject the Year-End
Supplementary Report for Small Disadvantaged Businesses resides with
the SSR Coordinator who acknowledges receipt or rejects the SSR.
(v) If the Contractor submits the Small Disadvantaged Business
Participation report using eSRS, the authority to acknowledge
receipt or reject this report in eSRS resides with the contracting
officer who acknowledges receipt or rejects the ISR.
(End of clause)
ALTERNATE I (OCT 2010)
As prescribed in 219.708(b)(1)(A)(2), substitute the following
paragraph (h)(1)(i) for paragraph (h)(1)(i) in the basic clause:
(h)(1)(i) The Standard Form 294 Subcontracting Report for
Individual Contracts shall be submitted in accordance with the
instructions on that form; paragraph (h)(2)(i) is inapplicable.
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5. Section 252.219-7004 is added to read as follows:
252.219-7004 Small business subcontracting plan (test program).
As prescribed in 219.708(b)(1)(B), use the following clause:
[[Page 65441]]
SMALL BUSINESS SUBCONTRACTING PLAN (TEST PROGRAM) (OCT 2010)
(a) Definition.
Electronic Subcontracting Reporting System (eSRS) means the
Governmentwide, electronic, Web-based system for small business
subcontracting program reporting. The eSRS is located at http://www.esrs.gov.
(b) The Offeror's comprehensive small business subcontracting
plan and its successors, which are authorized by and approved under
the test program of Section 834 of Pub. L. 101-189, as amended,
shall be included in and made a part of the resultant contract. Upon
expulsion from the test program or expiration of the test program,
the Contractor shall negotiate an individual subcontracting plan for
all future contracts that meet the requirements of Section 211 of
Public Law 95-507.
(c) The Contractor shall--
(1) Ensure that subcontractors with subcontracting plans agree
to submit an Individual Subcontract Report (ISR) and/or Summary
Subcontract Report (SSR) using the Electronic Subcontracting
Reporting System (eSRS);
(2) Provide its contract number, its DUNS number, and the e-mail
address of the Contractor's official responsible for acknowledging
or rejecting the ISR to all first-tier subcontractors, who will be
required to submit ISRs, so they can enter this information into the
eSRS when submitting their reports;
(3) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own DUNS number, and the e-
mail address of the subcontractor's official responsible for
acknowledging or rejecting the ISRs to its subcontractors with
subcontracting plans who will be required to submit ISRs; and
(4) Acknowledge receipt or reject all ISRs submitted by its
subcontractors using eSRS.
(d) The Contractor shall submit SSRs using eSRS at http://www.esrs.gov. The reports shall provide information on subcontract
awards to small business concerns, veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, small disadvantaged business
concerns, women-owned small business concerns, and Historically
Black Colleges and Universities and Minority Institutions. Purchases
from a corporation, company, or subdivision that is an affiliate of
the prime Contractor or subcontractor are not included in these
reports. Subcontract award data reported by prime contractors and
subcontractors shall be limited to awards made to their immediate
next-tier subcontractors. Credit cannot be taken for awards made to
lower tier subcontractors unless the Contractor or subcontractor has
been designated to receive a small business or small disadvantaged
business credit from an ANC or Indian Tribe. Only subcontracts
involving performance in the U.S. or its outlying areas should be
included in these reports.
(1) This report may be submitted on a corporate, company or
subdivision (e.g., plant or division operating as a separate profit
center) basis, as negotiated in the comprehensive subcontracting
plan with the Defense Contract Management Agency.
(2) This report encompasses all subcontracting under prime
contracts and subcontracts with the Department of Defense,
regardless of the dollar value of the subcontracts, and is based on
the negotiated comprehensive subcontracting plan.
(3) The Contractor shall submit the report semi-annually for the
six months ending March 31 and the twelve months ending September
30. Reports are due 30 days after the close of each reporting
period.
(4) The authority to receipt or reject the SSR resides with the
Comprehensive Subcontracting Program Division, the Defense Contract
Management Agency Small Business Center.
(e) All reports submitted at the close of each fiscal year shall
include a Year-End Supplementary Report for Small Disadvantaged
Businesses. The report shall include subcontract awards, in whole
dollars, to small disadvantaged business concerns by North American
Industry Classification System (NAICS) Industry Subsector. If the
data are not available when the year-end SSR is submitted, the prime
Contractor and/or subcontractor shall submit the Year-End
Supplementary Report for Small Disadvantaged Businesses within 90
days of submitting the year-end SSR. The authority to acknowledge
receipt or reject the Year End Report resides with the Comprehensive
Subcontracting Program Division, the Defense Contract Management
Agency Small Business Center.
(f) The failure of the Contractor or subcontractor to comply in
good faith with the clause of this contract entitled ``Utilization
of Small Business Concerns,'' or an approved plan required by this
clause, shall be a material breach of the contract.
(g) The Contractor shall include, in contracts that offer
subcontracting possibilities, are expected to exceed $550,000
($1,000,000 for construction of any public facility), and are
required to include the clause at 52.219-8, Utilization of Small
Business Concerns--
(1) FAR 52.219-9, Small Business Subcontracting Plan, and
252.219-7003, Small Business Subcontracting Plan (DoD Contracts),
when the Contracting Officer has included these clauses in the
contract for purposes of flowdown to subcontractors;
(2) 52.219-9 Small Business Subcontracting Plan with its
Alternate III and 252.219-7003, Small Business Subcontracting Plan
(DoD Contracts), with its Alternate I, when the Contracting Officer
has included these clauses in the contract for flowdown to
subcontractors to allow for submission of SF 294s in lieu of ISRs;
or
(3) 252.219-7004, Small Business Subcontracting Plan (Test
Program), in subcontracts with subcontractors that participate in
the test program described in DFARS 219.702.
(End of clause)
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6. In appendix I to chapter 2, Section I-105 is amended by revising
paragraph (b)(7) to read as follows:
Appendix I--Policy and Procedures for the DoD Pilot Mentor-Protege
Program
* * * * *
I-105 Mentor approval process.
(b) * * *
(7) The total dollar amount and percentage of subcontracts that
the company awarded to all SDB, women-owned small business, HUBZone
small business, and service-disabled veteran-owned small business
firms under DoD contracts and other Federal agency contracts during
the 2 preceding fiscal years. (Show DoD subcontract awards
separately.) If the company presently is required to submit a
Summary Subcontract Report (SSR) or previously submitted the
Standard Form (SF) 295, the request must include copies of the final
reports for the 2 preceding fiscal years.
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7. In appendix I to chapter 2, section I-112.1 is amended by revising
the section heading and paragraph (a) to read as follows:
I-112.1 Reporting requirements applicable to Individual Subcontract
Reports (ISR), Summary Subcontract Reports (SSR) and SF 294s.
(a) Amounts credited toward applicable subcontracting goal(s)
for unreimbursed costs under the Program must be separately
identified on the appropriate ISR, SSR or SF 294 reports from the
amounts credited toward the goal(s) resulting from the award of
actual subcontracts to protege firms. The combination of the two
must equal the mentor firm's overall accomplishment toward the
applicable goal(s).
* * * * *
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8. In appendix I to chapter 2, section I-112.2 is amended by revising
paragraph (c)(3) to read as follows:
I-112.2 Program specific Reporting requirements.
* * * * *
(c) * * *
(3) Dollars credited, if any, toward applicable subcontracting
goals as a result of developmental assistance provided to the
protege and a copy of the ISR or SF 294 and/or SSR for each contract
where developmental assistance was credited.
* * * * *
[FR Doc. 2010-26718 Filed 10-22-10; 8:45 am]
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