Defense Federal Acquisition Regulation Supplement; Miscellaneous Amendments
Federal RegisterJun 24, 1997
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DEPARTMENT OF DEFENSE
48 CFR Parts 201, 202, 203, 204, 208, 209, 212, 214, 215, 216, 219,
222, 224, 225, 227, 228, 229, 231, 232, 233, 234, 235, 236, 237,
239, 242, 243, 245, 246, 249, 252, 253, and Appendices G and I to
Chapter 2
[Defense Acquisition Circular 91-12]
Defense Federal Acquisition Regulation Supplement; Miscellaneous
Amendments
AGENCY: Department of Defense (DoD).
ACTION: Interim and final rules.
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SUMMARY: Defense Acquisition Circular 91-12 amends the Defense Federal
Acquisition Regulation Supplement (DFARS) to revise, finalize, or add
language on contract reporting, required sources of supplies and
services, contractor qualifications, economic price adjustment, small
business programs, labor laws, foreign acquisition, patent interchange
agreements, insurance, taxes, overseas contracts, contract financing,
contract disputes, construction contracts, acquisition of information
resources, contract administration, government property, and quality
assurance.
DATES: Effective date: June 24, 1997.
Comment date: Comments on the interim rule (Item XVIII: Sections
225.872-1; 225.872-2; 225.7005; 225.7007-1; 225.7007-3; 225.7007-4;
225.7010-1; 225.7010-2; 225.7010-3; 225.7016-1; 225.7016-2; 225.7016-3;
225.7019-1; 225.7019-1; 225.7019-3(a)(1)(iv); 225.7022-1; 225.7022-2;
225.7022-3; 252.225-7016; and 252.225-7029) should be submitted in
writing to the address shown below on or before August 25, 1997 to be
considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments on the
interim rule (Item XVIII) to: Defense Acquisition Regulations Council.
Attn: Ms. Amy Williams, PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telefax number (703) 602-0350.
Please cite DFARS Cite 96-D319 in all correspondence related to this
rule.
FOR FURTHER INFORMATION CONTACT:
Item XVIII--Ms. Amy Williams, (703) 602-0131;
All other items--Ms. Susan Buckmaster, (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This Defense Acquisition Circular (DAC) 91-12 includes 43 rules and
miscellaneous editorial amendments. Twelve of the rules (Items I, III,
VII, IX, XIV, XVII, XIX, XXII, XXIV, XXVII, XXXIII, and XXXIX) were
published previously in the Federal Register and thus are not included
as part of this notice of amendments to the Code of Federal
Regulations. These twelve rules are being published in the DAC to
incorporate the previously published amendments into the loose-leaf
edition of the DFARS.
The following information pertains to Item XVIII, Authority to
Waive Foreign Purchase Restrictions:
An interim DFARS rule implementing Section 810 of the National
Defense Authorization Act for Fiscal Year 1997 (Public 104-201) was
published in the Federal Register on January 17, 1997 (62 FR 2615),
with a request for public comments. Section 810, known as the ``McCain
Amendment,'' added new authority to waive the restrictions on foreign
purchases at 10 U.S.C. 2534(a), applicable to buses, chemical weapons
antidote, components for naval vessels, and ball and roller bearings,
permitting waiver if application of the restrictions would impede the
reciprocal procurement of defense items under a memorandum of
understanding with a foreign country. The interim rule provided this
waiver authority to the head of the contracting activity. Public
comments were received from four respondents, all seeking more positive
and effective implementation of the McCain Amendment.
On April 7, 1997, the Under Secretary of Defense (Acquisition and
Technology), waived the foreign source restrictions of 10 U.S.C.
2534(a) for the acquisition of defense items manufactured in qualifying
countries listed in DFARS 225.872-1. This interim rule implements the
waiver only for those items restricted in the DFARS. The restrictions
on most naval vessel components are handled by the Department of the
Navy. Acquisitions of anchor and mooring chain, totally enclosed
lifeboat survival systems, and noncommercial ball and roller bearings
are subject to additional defense appropriations act restrictions. The
acquisition of chemical weapons antidote is subject to U.S. defense
mobilization base requirements.
B. Determination To Issue an Interim Rule
A determination has been under the authority of the Secretary of
Defense that urgent and compelling reasons exist to publish this
interim rule prior to affording the public an opportunity to comment.
This action is necessary to implement the waiver by the Under Secretary
of Defense (Acquisition and Technology) of the restrictions of 10
U.S.C. 2534(A). The waiver is authorized by 10 U.S.C. 2534(d)(3), as
amended by Section 810 of the National Defense Authorization Act for
Fiscal Year 1997 (Public Law 104-201); the waiver became effective on
April 7, 1997. Comments received in response to the publication of this
interim rule will be considered in formulating the final rule.
C. Regulatory Flexibility Act
DAC 91-12, Items II, IV, V, XII, XIII, XV, XXIII, XXVIII, XXXVI,
XXXVII, XXXVIII, XLI, XLII, and XLIII
These rules do not constitute significant revisions within the
meaning of Federal Acquisition Regulation 1.501 and Public Law 98-577,
and publication for public comment is not required. However, comments
from small entities concerning the affected DFARS subparts will be
considered in accordance with Section 610 of the Regulatory Flexibility
Act (5 U.S.C. 610). Please cite the applicable DFARS case number in
correspondence.
DAC 91-12 Items VI, VIII, X, XI, XVI, XX, XXI, XXVI, XXIX, XXX, XXXI,
XXXII, XXXIV, and XXXV
DoD certifies that these rules 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:
Item VI, Institutions of Higher Education--This rule applies only
to institutions of higher education that are determined to have an
anti-ROTC policy.
Item VII, U.S. European Command Supplement--The rule applies only
to contracts that are awarded or performed in a foreign country. More
than 90 percent of such contracts are awarded to foreign firms. Those
U.S. firms that are awarded such contracts generally are not small
entities.
Item X, Certificate of Competency--The rule merely updates and
clarifies existing policy pertaining to (1) the Small Business
Administration Certificate of Competency Program, and (2) procurement
from small disadvantaged business regular dealers.
Item XI, Comprehensive Subcontracting Plans--Small businesses are
exempt from subcontracting plan requirements, and the rule does not
change the obligation of large business concerns to maximize
subcontracting opportunities for small business concerns.
Item XVI, Petroleum Products from Caribbean Basin Countries--
Petroleum
[[Page 34115]]
and products derived from petroleum already are subject to the Trade
Agreements Act. The consideration of Caribbean Basin country offers of
petroleum and products derived from petroleum is not expected to have a
significant effect on the petroleum market in this country.
Furthermore, the Trade Agreements Act and the Caribbean Basin Economic
Recovery Act apply only to acquisitions exceeding $190,000 in value.
Item XX, Preference for U.S. Firms on MILCON Overseas
Construction--The rule applies only to contracts estimated to exceed
$1,000,000 for military construction projects in the United States
territories and possessions in the Pacific and on Kwajalein Atoll, or
in countries bordering the Arabian Gulf.
Item XXI, Restriction on MILCON Overseas Architect-Engineer
Contracts--The rule applies only to architect-engineer contracts
estimated to exceed $500,000 for projects to be accomplished in Japan,
in any North Atlantic Treaty Organization member country, or in
countries bordering the Arabian Gulf.
Item XXVI, Carbon Fiber--The only known domestic manufacturer of
coal and petroleum pitch carbon fiber is a large business concern.
Item XXIX, Individual Compensation--Most contracts awarded to small
entities use simplified acquisition procedures or are awarded on a
competitive, fixed-price basis, and do not require application of the
FAR or DFARS cost principles. In addition, this rule applies only to
contractors that incur individual compensation costs in excess of
$200,000 per year.
Item XXX, Individual Compensation--Most contracts awarded to small
entities use simplified acquisition procedures or are awarded on a
competitive, fixed-price basis, and do not require application of the
FAR or DFARS cost principles. In addition, this rule applies only to
contractors that incur individual compensation costs in excess of
$250,000 per year.
Item XXXI, Restricting Costs/Bonuses--Most contracts awarded to
small entities use simplified acquisition procedures or are awarded on
a competitive, fixed-price basis, and do not require application of the
FAR or DFARS cost principles. In addition, this rule applies only to
contractors that incur restructuring costs associated with a business
combination.
Item XXXII, Restructuring Costs--Most contracts awarded to small
entities use simplified acquisition procedures or are awarded on a
competitive, fixed-price basis, and do not require application of the
FAR or DFARS cost principles. In addition, this rule applies only to
contractors that incur restructuring costs associated with a business
combination.
Item XXXIV, Information Technology Management Reform Act--The rule
primarily pertains to internal Government considerations regarding the
acquisition of information technology.
Item XXXV, Automatic Data Processing Equipment Leasing Costs--Most
contracts awarded to small entities use simplified acquisition
procedures or are awarded on a competitive, fixed-price basis, and do
not require application of the FAR or DFARS cost principles. In
addition, this rule merely removes references and requirements
pertaining to a cost principle that already has been removed from the
FAR.
DAC 91-12, Item XVIII
This interim rule is not expected 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 there
are no known small business manufacturers of buses, air circuit
breakers, or the restricted chemical weapons antidote; acquisition of
anchor and mooring chain, totally enclosed lifeboat survival systems,
and noncommercial ball and roller bearings is presently restricted to
domestic sources by defense appropriations acts; and the restrictions
of 10 U.S.C. 2534 do not apply to purchases of commercial items
incorporating ball or roller bearings. An initial regulatory
flexibility analysis has therefore not been prepared. Comments are
invited from small businesses and other interested parties. Comments
from small entities concerning the affected DFARS subparts also will be
considered in accordance with 5 U.S.C. 610. Such comments should be
submitted separately and should cite DFARS Case 96-D319 in
correspondence.
DAC 91-12, Items XXV and XL
A final regulatory flexibility analysis has been performed for each
of these rules. A copy of the analysis may be obtained from the address
specified herein. Please cite the applicable DFARS case number in
correspondence. The analyses are summarized as follows:
Item XXV, Ball and Roller Bearings--Waiver (DFARS Case 97-D300)--
This rule implements 10 U.S.C. 2534(d)(6) with regard to the
acquisition of ball and roller bearings. 10 U.S.C. 2534(d)(6) provides
that the Secretary of Defense may waive the domestic source
restrictions of 10 U.S.C. 2534(a) for an acquisition that is for an
amount less than the simplified acquisition threshold, when simplified
acquisition procedures are being used. Because of other statutory
provisions that pertain to the acquisition of ball and roller bearings,
the waiver authority in this rule may be used only if (1) ball and
roller bearings or bearing components are the end items being
purchased, and (2) the ball and roller bearings or bearing components
are commercial items, or no fiscal year 1996 or 1997 funds are being
used. No comments were received in response to the initial regulatory
flexibility analysis or the proposed rule published in the Federal
Register at 62 FR 7432 on February 19, 1997. It is estimated that 11
small businesses could be affected by this rule. The rule imposes no
new reporting, recordkeeping, or compliance requirements for offerors
or contractors. There are no practical alternatives that will fully
implement the provisions of 10 U.S.C. 2534(d)(6).
Item XL, notice of termination (DFARS Case 96-D320)--This rule
implements Section 824 of the National Defense Authorization Act for
Fiscal Year 1997 (Public Law 104-201). Section 824 streamlines the
statutory requirements for providing notification to contractors and
subcontractors regarding contract terminations or reductions that are
expected to occur as a result of reduced funding levels under major
defense programs. No comments were received in response to the initial
regulatory flexibility analysis. However, one comment was received in
response to the interim rule published in the Federal Register at 61 FR
64636 on December 6, 1996. The comment reserved judgment on whether a
60-day notification period affords industry, particularly smaller
firms, sufficient time to adjust to substantial funding reductions to,
or terminations of, major defense program contracts. The industry
association that authored the comment stated that its member companies
will monitor implementation experience, and, if necessary, will
recommend additional actions concerning the new notification
procedures. No changes were made to the rule as a result of the public
comment, because (1) the 60-day notification period is required by
Section 824 of Public Law 104-201; (2) and the comment did not indicate
a need for a change to the rule at this time. The rule applies to all
large and small entities that have, under a major defense program, a
prime contract, a first-tier subcontract of $500,000 or more, or a
lower-tier subcontract of
[[Page 34116]]
$100,000 or more, that is expected to be terminated or substantially
reduced as a result of reduced funding levels in an appropriations act.
The rule imposes no additional reporting, recordkeeping, or compliance
requirements on offerors or contractors. There are no practical
alternatives that will adequately implement the requirements of Section
of 824 of Public Law 104-201.
D. Paperwork Reduction Act
DAC 91-12, Items, II, IV, V, VI, X, XI, XII, XIII, XV, XVI, XVIII, XXI,
XXIII, XXV, XXVI, XXVIII, XXIX, XXX, XXXI, XXXII, XXXIV, XXXV, XXXVI,
XXXVII, XXXVIII, XL, XLI, XLII, XLIII
The Paperwork Reduction Act does not apply, because these rules
impose no information collection requirements that require the approval
of the Office of Management and Budget under 44 U.S.C. 3501 et seq.
DAC 91-12, Items VIII and XX
The Paperwork Reduction Act applies. The Office of Management and
Budget (OMB) has approved the information collection requirements as
follows:
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OMB control
Item No.
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VIII....................................................... 0704-0216
0704-0248
0704-0259
0704-0390
9000-0034
XX......................................................... 0704-0255
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Defense Acquisition Circular (DAC) 91-12 amends the Defense Federal
Acquisition Regulation Supplement (DFARS) 1991 edition. The amendments
are summarized as follows:
Item I--Procurement Integrity (DFARS Case 96-D310)
This final rule was issued by Departmental Letter 97-003, effective
January 17, 1997 (62 FR 2611, January 17, 1997). The rule amends DFARS
Subpart 203.1 and 215.608, and removes the clause at 252.203-7000, to
implement Section 4304 of the National Defense Authorization Act for
Fiscal Year 1996 (Public Law 104-106) and to conform to the FAR
revisions published as Item I of Federal Acquisition Circular 90-45.
Section 4304 amended the procurement integrity provisions at 41 U.S.C.
423 and repealed 10 U.S.C. 2397-2397c, which addressed post-Federal
employment of certain DoD employees.
Item II--Reporting Real Property Leases (DFARS Case 97-D001)
This final rule amends DFARS 204.670-2(a) to clarify that the
requirement to complete a DD Form 350 for contracting actions that
obligate or deobligate more than $25,000 also applies to DoD actions
that are for the purchase of land or rental or lease of real property.
Item III--Contract Reporting for Fiscal Year 1997 (DFARS Case 97-D315)
This final rule was issued by Departmental Letter 96-017, effective
October 1, 1996 (61 FR 51030, September 30, 1996). The rule amends
DFARS Parts 204 and 253 to revise DD Form 350 and DD Form 1057 contract
action reporting requirements, for compliance with provisions of the
Federal Acquisition Streamlining Act of 1994 (Public Law 103-355).
Item IV--Commercial Transactions with the Government of a Terrorist
Country (DFARS Case 96-D026)
This final rule removes DFARS 209.104-1(g)(iii), 209.104-70(c) and
(d), 252.209-7003, and 252.209-7004, which pertained to contractor
disclosure of information commercial transactions with the Government
of a terrorist country. The statutory authority for this disclosure
requirement (Section 843 of Public Law 103-160) expired on September
30, 1996.
Item V--Foreign Environmental Technology (DFARS Case 96-D322)
This final rule amends DFARS 209.104-1 to implement Section 828 of
the National Defense Authorization Act of Fiscal Year 1997. Section 828
provides that the Secretary of Defense may, in the case of a contract
for environmental restoration, remediation, or waste management at a
DoD facility, waive the prohibition on award of a contract to an entity
controlled by a foreign government under certain circumstances.
Item VI--Institutions of Higher Education (DFARS Case 96-D305)
The interim rule published as Item VI of DAC 91-11 is converted to
a final rule without change. The rule amended DFARS 209.470 and 243.105
to implement Section 541 of the National Defense Authorization Act for
Fiscal Year 1996 (Public Law 104-106). Section 541 provides that no
funds available to DoD may be provided by grant or contract to any
institution of higher education that has an anti-ROTC policy.
Item VII--Elimination of Certifications (DFARS Case 96-D306)
This final rule was issued by Departmental Letter 97-004, effective
January 17, 1997 (62 FR 2612, January 17, 1997). The rule amends DFARS
Parts 215, 219, 225, 226, 227, 233, and 252 to remove certification
requirements for contractors and offerors that are not required by
statute or otherwise approved for retention by the Secretary of
Defense. The rule implements Section 4301(b) of the Clinger-Cohen Act
of 1996 (Public Law 104-106).
Item VIII--U.S. European Command Supplement (DFARS Case 94-D001)
This final rule amends DFARS Parts 216, 222, 225, 227, 228, 229,
232, 233, 236, 246, and 252 to incorporate guidance previously
contained in the U.S. European Command Supplement for application to
contracts to be performed in a foreign country. Contracts to be
performed in a foreign country must include requirements imposed by the
host country's government in addition to U.S. Government requirements,
and must provide for customs and tax exemptions to which the U.S.
Government is entitled.
Item IX--MILCON--Environmental Restoration (DFARS Case 96-D327)
This final rule was issued by Departmental Letter 97-001, effective
January 8, 1997 (62 FR 1058, January 8, 1997). The rule revises DFARS
216.306 to implement Section 101 of the Military Construction
Appropriations Act for Fiscal Year 1997 (Public Law 104-196). Section
101 continues to restrict the use of cost-plus-fixed-fee contracts for
military construction, but provides an exception for contracts for
environmental restoration at installations that are being closed or
realigned where payments are made from a base realignment and closure
account.
Item X--Certificate of Competency (DFARS Case 96-D003)
This final rule amends DFARS 219.602-3 and 252.219-7006 to (1)
update the reference to the Small Business Administration offices
involved in resolving differences between an agency and the Small
Business Administration; (2) remove references to Section 8051 of
Public Law 103-139 and Section 8012 of Public Law 103-335, which
applied only to contracts awarded during fiscal years 1994 and 1995;
and (3) clarify existing text.
Item XI--Comprehensive Subcontracting Plans (DFARS Case 96-D304)
The interim rule pulished as Item VIII of DAC 91-11 is converted to
a final rule with an amendment at DFARS
[[Page 34117]]
252.219-7004. The rule reflects changes to the Test Program for
Negotiation of Comprehensive Small Business Subcontracting Plans, as
required by Section 811 of the National Defense Authorization Act for
Fiscal Year 1996 (Public Law 104-106). The final rule differs form the
interim rule in that it amends the clause at 252.219-7004 to clarify
instructions for contractor submission of Standard Form 295, Summary
Subcontract Report.
Item XII--Bond Waivers (DFARS Case 96-D019)
This final rule removes DFARS 219.808, 219.811, and 252.219-7007,
which pertained to waiver of Miller Act requirements for performance
and payment bonds under 8(a) construction contracts. The statutory
authority for waiver of these requirements (Section 813 of Public Law
102-190) applied only to contracts awarded during fiscal years 1992
through 1994.
Item XIII--Small Business Competitiveness Demonstration Program (DFARS
Case 96-D025)
This final rule amends DFARS 219.1005 to remove dredging from the
list of designated industry groups under the Small Business
Competitiveness Demonstration Program. Dredging had been added to the
list as part of a test program established under Section 722 of the
Small Businesss Credit and Business Opportunity Enhancement Act of 1992
(Public Law 102-366). The statutory authority for the test program
expired on September 30, 1996.
Item XIV--Pilot Mentor-Protege Program (DFARS Case 96-D317)
This final rule was issued by Departmental Letter 96-018, effective
October 18, 1996 (61 FR 54346, October 18, 1996). The rule amends DFARS
219.7104 and Appendix I to implement Section 802 of the National
Defense Authorization Act for Fiscal Year 1997 (Public Law 104-201).
Section 802: (1) Extends to September 30, 1998, the date by which an
interested company must apply for participation as a mentor firm under
the DoD Pilot Mentor-Protege Program; and (2) extends to September 30,
1999, the date by which a mentor firm must incur costs in order to be
eligible for reimbursement under the Program.
Item XV--Nondomestic Construction Materials (DFARS Case 97-D009)
This final rule removes the clause at DFARS 252.225-7004,
Nondomestic Construction Materials, and the corresponding prescriptive
language at 225.205. The DFARS clause has been superseded by the
clauses at FAR 52.225-5, Buy American Act--Construction Materials, and
52.225-15, Buy American Act--Construciton Materials under Trade
Agreements Act and North American Free Trade Agreement, as amended by
Federal Acquisition Circular 90-46.
Item XVI--Petroleum Products from Caribbean Basin Countries (DFARS Case
96-D312)
The interim rule published as Item XI of DAC 91-11 is converted to
a final rule without change. The rule amended DFARS 225.403 to fully
implement Section 8094 of the National Defense Appropriations Act for
Fiscal Year 1994 (Public Law 103-139). Section 8094 requires DoD to
consider all qualified bids from eligible countries under the Caribbean
Basin Economic Recovery Act as if they were offers from designated
countries under the Trade Agreements Act. The rule also amended DFARS
225.403-70 and 252.225-7007 to clarify that the definition of Caribbean
Basin country end products includes petroleum and any end product
derived from petroleum.
Item XVII--Metalworking Machinery--Trade Agreements (DFARS Case 96-
D030)
This final rule was issued by Departmental Letter 97--005,
effective January 17, 1997 (62 FR 2615, January 17, 1997). The rule
amends DFARS 225.403-70 to remove the exception to application of the
trade agreements acts for those machine tools for which acquisition was
previously, but is no longer, restricted by 10 U.S.C. 2534. As a
result, all metal working machinery products in Federal Supply Group 34
are subject to the trade agreements acts.
Item XVIII--Authority To Waive Foreign Purchase Restrictions (DFARS
Case 96-D319)
This interim rule supersedes the interim rule issued by
Departmental Letter 97-006 on January 17, 1997. The rule amends DFARS
225.872, 225.70, and clauses at 252.225-7016 and 252.225-7029 to
implement the waiver by the Under Secretary of Defense (Acquisition and
Technology) of the foreign source restrictions of 10 U.S.C. 2534(a),
for the acquisition of defense items manufactured in a qualifying
county. This waiver is authorized by 10 U.S.C. 2534(d)(3), as amended
by section 810 (the McCain Amendment) of the National Defense
Authorization Act for Fiscal Year 1997 (Public Law 104-201).
Item XIX--Foreign Machine Tools and Powered and Non-Powered Valves
(DFARS Case 96-D023)
This final rule was issued by Departmental Letter 96-019, effective
November 15, 1996 (61 FR 58488, November 15, 1996). The rule amends
DFARS Subpart 225.70, and removes the clause and provision at 252.225-
7017 and 252.225-7040, to reflect the expiration of the restriction on
the acquisition of machine tools and powered and non-powered valves at
10 U.S.C. 2534. Related amendments are made at 212.504(a) and 252.212-
7001(b).
Item XX--Preference for U.S. Firms on MILCON Overseas Construction
(DFARS Case 96-D328)
The interim rule issued by Departmental Letter 97-008, on January
17, 1997, is converted to a final rule without change. The rule amends
DFARS 225.7000, 225.7003, 236.274, and 236.570, and adds a new
provision at 252.236-7010, to implement Section 112 of the Military
Construction Appropriations Act for Fiscal Year 1997 (Public Law 104-
196). Section 112 provides a 20 percent evaluation preference for U.S.
firms on contracts estimated to exceed $1,000,000 for military
construction projects in the U.S. territories and possessions in the
Pacific and on Kwajalein atoll, or in countries bordering the Arabian
Gulf.
Item XXI--Restriction on MILCON Overseas Architect-Engineer Contracts
(DFARS Case 96-D329)
The interim rule issued by Departmental Letter 97-008, on January
17, 1997, is converted to a final rule without change. The rule adds
new sections at DFARS 225.7004 and 236.602-70, amends 236.102 and
236.609-70, and adds a new provision at 252.236-7011, to implement
Section 111 of the Military Construction Appropriations Act for Fiscal
Year 1997 (Public Law 104-196). Section 111 restricts award of
architect-engineer contracts estimated to exceed $500,000 for projects
to be accomplished in Japan, in any North Atlantic Treaty Organization
member country, or in countries bordering the Arabian Gulf, to U.S.
firms or U.S. firms in joint venture with hose nation firms.
Item XXII--Application of Berry Amendment (DFARS Case 96-D333)
This interim rule was issued by departmental Letter 97-009,
effective February 7, 1997 (62 FR 5779, February 7, 1997). The rule
amends DFARS 225.7002, 252.212-7001, 252.225-7012, and 252.225-7014;
adds a new section
[[Page 34118]]
at 244.403 and a new clause at 252.244-7000; and removes language at
212.504(a)(i). The rule implements Section 8109 of the National Defense
Appropriations Act for Fiscal Year 1997 (Public Law 104-208). Section
8109 provides that, in applying the Berry Amendment (10 U.S.C. 2241
note), the term ``synthetic fabric and coated synthetic fabric'' shall
be deemed to include all textile fibers and yarns that are for use in
such fabrics; and that the domestic source restrictions of the Berry
Amendment shall apply to contracts and subcontracts for the procurement
of commercial items.
Item XXIII--Aircraft Ejection Seats (DFARS Case 96-D022)
This final rule amends DFARS 225.7009 to remove the restriction on
acquisition of aircraft ejection seats manufactured in a foreign
nation, as the restriction applied only to contracts awarded using
funds appropriated for fiscal years 1984 through 1989.
Item XXIV--Ball and Roller Bearings (DFARS Case 96-D331)
This final rule was issued by Departmental Letter 96-019, effective
November 15, 1996 (61 FR 58489, November 15, 1996). The rule amends
DFARS 225.7019-1 to reflect the extension, beyond fiscal year 1996, of
the requirement to acquire ball and roller bearings from domestic
sources when using appropriated funds.
Item XXV--Ball and Roller Bearings--Waiver (DFARS Case 97-D300)
This final rule amends DFARS 225.7019-3 to implement the waiver
authority of 10 U.S.C. 2534(d)(6) with regard to the acquisition of
ball and roller bearings. 10 U.S.C. 2534(d)(6) provides that the
Secretary of Defense may waive the foreign source restrictions of 10
U.S.C. 2534(a) for a procurement that is for an amount less than the
simplified acquisition threshold, when simplified acquisition
procedures are being used.
Item XXVI--Carbon Fiber (DFARS Case 96-D010)
This final rule amends DFARS Subpart 225.70 and 225.71 to remove
the restriction on foreign acquisition of coal and petroleum pitch
carbon fiber and to move, from Subpart 225.70 to Subpart 225.71, the
restriction on foreign acquisition of polyacrylonitrile (PAN) carbon
fiber. The restrictions on foreign acquisition of these items are no
longer required by statute. However, the restriction on PAN carbon
fiber has been retained in the DFARS as a matter of policy. Related
amendments are made at 208.7203(c), 252.225-7022, and 252.225-7025; and
the clause at 252.225-7034 is removed.
Item XXVII--Contingent Fees--Foreign Military Sales (DFARS Case 96-
D021)
This interim rule was issued by departmental Letter 97-007,
effective January 17, 1997 (62 FR 2616, January 17, 1997). The rule
amends DFARS Subpart 225.73 and the clauses at 252.212.7001 and
252.225-7027 to conform to the FAR revisions published as Item I of
Federal Acquisition Circular 90-40. The FAR revisions removed
requirements for prospective contractors to provide certain information
to the Government regarding contingent fee arrangements. This interim
rule makes the associated DFARS changes related to contingent fees
under contracts for foreign military sales.
Item XXVIII--Offset Arrangements (DFARS Case 96-D018)
This final rule revises DFARS 225.7307 to update policy pertaining
to DoD involvement in foreign military sale offset arrangements. In
accordance with the Presidential policy statement of April 16, 1990,
DoD does not encourage, enter into, or commit U.S. firms to foreign
military sale offset arrangements. The decision whether to engage in
offset arrangements, and the responsibility for negotiating and
implementing such arrangements, resides with the companies involved.
Item XXIX--Individual Compensation (DFARS Case 96-D314)
The interim rule published as Item XX of DAC 91-11 is converted to
a final rule without change. The rule amended DFARS Part 231 to
implement Section 8086 of the National Defense Appropriations Act for
Fiscal Year 1996 (Public Law 104-61). Section 8086 limits allowable
costs for individual compensation to $200,000 per year under DoD
contracts awarded after July 1, 1996, that are funded by fiscal year
1996 appropriations.
Item XXX--Individual Compensation (DFARS Case 96-D330)
The interim rule issued by Departmental Letter 96-023 on December
13, 1996, is converted to a final rule without change. The rule amends
DFARS 231.205-6(a) to implement Section 8071 of the National Defense
Appropriations Act for Fiscal Year 1997 (Public Law 104-208). Section
8071 limits allowable costs for individual compensation to $250,000 per
year under DoD contracts funded by fiscal year 1997 appropriations.
Item XXXI--Restructuring Costs/Bonuses (DFARS Case 96-D332)
The interim rule issued by Departmental Letter 96-020 on November
15, 1996, is converted to a final rule without change. The rule amends
DFARS 231.205-6(f) to implement Section 8095 of the National Defense
Appropriations Act for Fiscal Year 1997 (Public Law 104-208). Section
8095 prohibits the use of fiscal year 1997 funds to reimburse a
contractor for costs paid to an employee for a bonus or other payment
in excess of the normal salary paid by the contractor to the employee,
when such payment is part of restricting costs associated with a
business combination.
Item XXXII--Restructuring Costs (DFARS Case 96-D334)
The interim rule issued by Departmental Letter 96-022, on December
6, 1996, is converted to a final rule without change. The rule amends
DFARS 231.205-70 to implement Section 8115 of the National Defense
Appropriations Act for Fiscal Year 1997 (Public Law 104-208). Section
8115 prohibits the use of fiscal year 1997 funds to reimburse a
contractor for external restructuring costs associated with a business
combination unless certain conditions are met.
Item XXXIII--Earned Value Management Systems (DFARS Case 96-D024)
This interim rule was issued by Departmental Letter 97-011,
effective March 5, 1997 (62 FR 9990, March 5, 1997). The rule amends
DFARS Parts 234, 242, and 252 to recognize industry-standard guidelines
for earned value management systems (EVMS) as an alternative to DoD-
unique cost/schedule control systems under DoD contracts. Since DoD's
cost/schedule control systems criteria are considered to be equivalent
to EVMS, contractors' previously approved cost/schedule control systems
are acceptable under the EVMS criteria. However, it is no longer
necessary for DoD contractors to create or maintain DoD-unique cost/
schedule control systems at facilities where acceptable EVMS exist.
Item XXXIV--Information Technology Management Reform Act (DFARS Case
96-D017)
The interim rule issued by Departmental Letter 97-002, on January
8, 1997, is converted to a final rule with minor editorial changes at
239.7003(f)(1), 239.7102-3, and 239.7302(b)(2)(i). The rule amends
DFARS Part 239 to conform to the FAR revisions published as Item I of
Federal
[[Page 34119]]
Acquisition Circular 90-41. The FAR revisions implemented the
Information Technology Management Reform Act of 1996 (Division E of
Public Law 104-106).
Item XXXV--Automatic Data Processing Equipment Leading Cost (DFARS Case
96-D011)
The interim rule issued by Departmental Letter 97-010, on March 3,
1997, is converted to a final rule without change. The rule amends
DFARS Subpart 239.73 to remove references and requirements pertaining
to the cost principle on automatic data processing equipment leasing
costs that was removed from FAR 31.205-2 by federal Acquisition
Circular 90-44.
Item XXXVI--Contract Administration Under No-Charge Reciprocal
Agreements (DFARS Case 96-D014)
This final rule amends DFARS 242.101 to specify that DoD may
provide contract administration services to a non-DoD organization
under a no-charge reciprocal agreement. The Arms Export Control Act
(Public Law 90-629), as amended by Section 110 of Public Law 99-83,
provides that the U.S. Government may perform contract administration
services, without charge, for a foreign government that is a member of
the North Atlantic Treaty Organization, if the foreign government
provides such services to the U.S. Government on a no-charge reciprocal
basis.
Item XXXVII--Submission of Commercial Freight Bills (DFARS Case 97-
D006)
This final rule removes the clause at DFARS 252.242-7002,
Submission of Commercial Freight Bills for Audit, and the corresponding
prescriptive language at 242.1404-2-70. The DFARS clause has been
superseded by the clause at FAR 52.247-67, Submission of Commercial
Transportation Bills to the General Services Administration for Audit.
Item XXXVIII--Monitoring Contractor Costs (DFARS Case 96-D029)
This final rule removes DFARS Subpart 242.70, Monitoring Contractor
Costs, to eliminate specific requirements for the establishment of
formal programs for Government monitoring of contractor costs. This
change is expected to provide greater flexibility in the adoption of
alternate techniques for control and monitoring of costs under
Government contracts.
Item XXXIX--Downsizing Notice (DFARS Case 96-D321)
This final rule was issued by Departmental Letter 96-024, effective
December 26, 1996 (61 FR 67952, December 26, 1996). The rule removes
DFARS 249.102, 249.7002, 252.249-7001, and DD Form 2604 to implement
Section 825 of the National Defense Authorization Act for Fiscal Year
1997 (Public Law 104-201). Section 825 repealed the requirement for the
Secretary of Defense to notify the Secretary of Labor if a modification
or termination for convenience of a major defense contract or
subcontract will have substantial impact on employment.
Item XL--Notice of Termination (DFARS Case 96-D320)
The interim rule issued by Departmental Letter 96-021 on December
6, 1996, is converted to a final rule without change. The rule revises
DFARS 249.7003 and the clause at 252.249-7002 to implement Section 824
of the National Defense Authorization Act for Fiscal Year 1997 (Public
Law 104-201). Section 824 streamlines the statutory requirements for
providing notification to contractors regarding contract terminations
or reductions that are expected to occur as a result of reduced funding
levels under major defense programs.
Item XLI--Economically Disadvantaged Representations (DFARS Case 97-
D004)
This final rule amends the provision at DFARS 252.219-7000 to
update the listed categories of socially and economically disadvantaged
individuals, for conformance with the Small Business Administration
regulations at 13 CFR 124.105.
Item XLII--Trade Agreements Clauses (DFARS Case 96-D008)
This final rule amends the provision and clause at DFARS 252.255-
7006 and 252.225-7007 to (1) specify that offers of foreign end
products will be evaluated in accordance with the policies and
procedures of DFARS Part 225; (2) revise the definitions of ``Caribbean
Basin country end product,'' ``designated country end product,'' and
``NAFTA country end product'' for consistency with the FAR definitions
of these terms; and (3) specify that a contractor may deliver only
domestic end products unless, in its offer, it specified delivery of
U.S. made, qualifying country, designated country, Caribbean Basin
country, NAFTA country, or other nondesignated country end products.
Item XLIII--Caribbean Basin and Designated Countries (DFARS Case 96-
D015)
This final rule amends the clause at DFARS 252.225-7007 to (1) add
a definition of ``Caribbean Basin country'' in place of a reference to
the definition at FAR 25.401, and (2) update the definition of
``designated country'' for conformance with the policy of the U.S.
Trade Representative.
Editorial Revisions
(1) DFARS 201.603-2(l) is amended to update the terminology in the
introductory text.
(2) DFARS 202.101 is amended to add the Defense Finance and
Accounting Service to the list of contracting activities and defense
agencies; to update the name of the Defense Information Systems Agency
contracting activity; and to reflect the change in name of the Defense
Mapping Agency to the National Imagery and Mapping Agency.
(3) DFARS 203.409 is redesignated as 203.405 for conformance with
the designation of the corresponding FAR section.
* (4) DFARS 203.502 IS AMENDED TO CORRECT A TYPOGRAPHICAL ERROR.
(5) DFARS 203.570-5 is amended to remove the phrase ``in FAR Part
13.''
(6) DFARS 204.7003(a)(1)(i)(G) is revised to reflect the change in
name of the Defense Mapping Agency to the National Imagery and Mapping
Agency.
(7) DFARS 208.002(f) is amended to update the address of the
Defense National Stockpile Center.
(8) DFARS 208.7203 is amended to remove the reference to FAR
Subpart 8.2, as Subpart 8.2 was removed from the FAR by Federal
Acquisition Circular 90-45.
(9) DFARS 212.301(f)(iii) is amended to show the complete title of
the clause at 2562.212-7001.
(10) DFARS 214.406 is redesignated as 214.407 for conformance with
the designation of the corresponding FAR section. Newly designated
214.407-3(e)(v) is amended to reflect the change in name of the Defense
Mapping Agency to the National Imagery and Mapping Agency.
(11) DFARS 215.872-4(d)(1) is amended to revise the phrase
``commercial products'' to read ``commercial items,'' and to update the
FAR reference.
(12) DFARS 216.307 and 252.216-7002 are removed as these DFARS
sections have been superseded by the revisions to the clause at FAR
52.216-15 published in Federal Acquisition Circular 90-39.
[[Page 34120]]
(13) DFARS 219.1006(b)(2) is amended to revise the title ``Office
of the Under Secretary of Defense (Acquisition & Technology) to read
``Office of the Deputy Under Secretary of Defense (International &
Commercial Programs).''
(14) DFARS 224.202 is redesignated as 224.203 for conformance with
the designation of the corresponding FAR section.
(15) DFARS is amended by redesignating paragraph (b) as paragraph
(a)(3), for conformance with the designation of the corresponding FAR
paragraph.
(16) DFARS 225.403 is amended by redesignating paragraphs (c) and
(d)(1)(A) as paragraphs (b) and (c)(1)(A), respectively, for
conformance with the designation of the corresponding FAR paragraphs.
(17) DFARS 233.214 is redesignated as 233.215 for conformance with
the designation of the corresponding FAR section.
(18) DFARS 234.003 is amended to update the referenced. DoDI 5000.2
has been cancelled and replaced by DoD 5000.2-R.
(19) DFARS 235.006(b)(i)(C)(1)(iii) is amended to update the FAR
reference.
* (20) DFARS 235.006(b)(i)(C)(2) is amended to correct a
typographical error.
(21) DFARS 235.010 is amended to update the address of the Defense
Technical Information Center.
(22) DFARS 237.7102 (a) and (b) are amended to show the correct
titles of the clauses at 252.237-7012 and 252.237-7013.
(23) DFARS 242.101(d)(i) and (ii) are amended to revise the title
``Assistant Secretary of Defense (Comptroller)'' to read ``Under
Secretary of Defense (Comptroller/Chief Financial Officer).''
(24) DFARS 242.102(b)(ii) is amended to revise the name ``Defense
Contract Management Area Operations (DCMAO)'' to read ``Defense
Contract Management Command (DCMC).''
(25) DFARS Part 245 is amended to update addresses and office
titles; and to remove the language at 245.608-5(d) and insert similar
text at 245.608-72.
(26) DFARS 249.110 is amended in Table 49-1, Part III, paragraphs
1b and 4, to correct typographical errors.
(27) DFARS 252.203-7001 is amended in paragraph (g) to update the
FAR reference; and in paragraph (h) to update the telephone number of
The Denial of Benefits Office, U.S. Department of Justice.
*(28) DFARS 252.209-7002(a)(3) is amended to revise the word
``county'' to read ``country.''
(29) DFARS 252.227-7030 is amended to correct the reference in the
introductory text.
*(30) DFARS 252.232-7007(b) is amended to correct a typographical
error.
(31) DFARS Part 253 is amended to update DD Forms 350; 375; 375C;
1057; 1149; 1149C; 1342; 1419; 1637; 1639; 1640; 1659; 1662; and 1861;
and to remove obsolete DD Form 1851.
(32) DFARS Appendix G is amended to update activity names and
addresses.
(33) Appenix I is amended to revise the office symbol
``OUSD(A&T)SADBU'' to read ``DUSD(I&CP)SADBU'' each place it appears.
* The asterisked items are revisions being made only in the
loose-leaf edition of the DFARS.
Note: This DAC incorporates, into the loose-edition of the
DFARS, revisions previously issued by Departmental Letters 96-017
through 97-011. DFARS revisions contained in departmental letters
issued after 97-011 will be included in a future DAC.
List of Subjects in 48 CFR Parts 201, 202, 203, 204, 208, 209, 212,
214, 215, 216, 219, 222, 224, 225, 227, 228, 229, 231, 232, 233,
234, 235, 236, 237, 239, 242, 243, 245, 246, 249, 252, and 253
Government procurement.
Michele P. Peterson,
Executive Director, Defense Acquisition Regulations Council.
Interim Rules Adopted as Final Without Change
PARTS 209 AND 243--[AMENDED]
The interim rule that was published at 61 FR 25408 on May 21, 1996,
is adopted as final without change.
PARTS 225, 236, AND 252--[AMENDED]
The interim rule that was published at 62 FR 2856 on January 17,
1997, is adopted as final without change.
PARTS 225 AND 252--[AMENDED]
The interim rule that was published at 61 FR 37841 on July 22,
1996, is adopted as final without change.
PART 231--[AMENDED]
The interim rule that was published at 61 FR 36305 on July 10,
1996, is adopted as final without change.
PART 231--[AMENDED]
The interim rule that was published at 61 FR 58490 on November 15,
1996, is adopted as final without change.
PART 231--[AMENDED]
The interim rule that was published at 61 FR 64635 on December 6,
1996, is adopted as final without change.
PART 231--[AMENDED]
The interim rule that was published at FR 65478 on December 13,
1996, is adopted as final without change.
PART 239--[AMENDED]
The interim rule that was published at 62 FR 9375 on March 3, 1997,
is adopted as final without change.
PARTS 249 AND 252--[AMENDED]
The interim rule that was published at 61 FR 64636 on December 6,
1996, is adopted as final without change.
Interim Rules Adopted as Final With Changes
PARTS 219 AND 252--[AMENDED]
The interim rule that was published at 61 FR 39900 on July 31,
1996, is adopted as final with an amendment at section 252.219-7004 as
set forth in this document.
PARTS 225, 236, AND 252--[AMENDED]
The interim rule that was published at 62 FR 2857 on January 17,
1997, is adopted as final with an amendment at section 236.609-70 as
set forth in this document.
PART 239--[AMENDED]
The interim rule that was published at 62 FR 1058 on January 8,
1997, is adopted as final with amendments at sections 239.7003,
239.7102-3 and 239.7302 as set forth in this document.
Amendments to 48 CFR Chapter 2 (Defense Federal Acquisition Regulation
Supplement)
48 CFR Chapter 2 (the Defense Federal Acquisition Regulation
Supplement) is amended as follows:
1. The authority citation for 48 CFR Parts 201, 202, 203, 204, 208,
209, 212, 214, 215, 216, 219, 222, 224, 225, 227, 228, 229, 231, 232,
233, 234, 235, 236, 237, 239, 242, 243, 245, 246, 249, 252, 253, and
Appendices G and I to subchapter I continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
[[Page 34121]]
PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM
2. Section 201.603-2 is amended by revising the introductory text
of paragraph (1) to read as follows:
Sec. 201.603-2 Selection.
(1) Pursuant to 10 U.S.C. 1724, in order to qualify to serve as a
contracting officer with authority to award or administer contracts for
amounts above the simplified acquisition threshold, a person must--
* * * * *
PART 202--DEFINITIONS OF WORDS AND TERMS
Sec. 202.101 [Amended]
3. Section 202.101 is amended in the definition of ``Contracting
activity'' by adding, after the entry ``Defense Advanced Research
Projects Agency Office of the Deputy Director, Management'', the entry
``Defense Finance and Accounting Service External Services, Defense
Finance and Accounting Service''; by removing the entry ``Defense
Information Systems Agency Headquarters, Defense Information Systems
Agency Defense Commercial Communications Office'' and inserting in its
place the entry ``Defense Information Systems Agency Defense
Information Technology Contracting Organization''; by removing the
entry ``Defense Mapping Agency Headquarters, Office of Acquisition,
Installation and Logistics'' and inserting in its place the entry
``National Imagery and Mapping Agency Procurement and Contracting
Office''; and in the definition of ``Departments and agencies'' by
adding, after the phrase ``the Defense Commissary Agency,'' the phrase
``the Defense Finance and Accounting Service,''; and by removing the
phrase ``Defense Mapping Agency'' and inserting in its place the phrase
``National Imagery and Mapping Agency''.
PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Sec. 203.409 [Redesignated]
4. Section 203.409 is redesignated as section 203.405.
Sec. 203.570-5 [Amended]
5. Section 203.570-5 is amended by removing the words ``in FAR Part
13''.
PART 204--ADMINISTRATIVE MATTERS
6. Section 204.670-1 is amended by revising paragraph (c)(4) to
read as follows:
Sec. 204.670.-1 Definitions.
* * * * *
(c) * * *
(4) For the Defense Logistics Agency: Headquarters, Defense
Logistics Agency, Attn: Directorate of Procurement (Acquisition
Operations Team), 8725 John J. Kingman Road, Suite 3147, Ft. Belvoir,
VA 22060-6221
* * * * *
7. Section 204.670-2 is amended by revising paragraph (a)(1) to
read as follows:
Sec. 204.670-2 Reportable contracting actions.
(a) * * *
(1) All contracting actions, including actions executed by DoD for
purchase of land, or rental or lease of real property, that obligate or
deobligate more than $25,000; and
* * * * *
8. Section 204.670-9 is amended by revising the introductory text
and paragraph (a) to read as follows:
Sec. 204.670-9 Reporting of individual contracting actions of $25,000
or less.
Under the Small Business Competitiveness Demonstration Program (see
FAR subpart 19.10), contracting actions of $25,000 or less in four
designated industry groups must be reported in the same manner as if
the actions were in excess of $25,000.
(a) Report contracting actions of $25,000 or less in the designated
industry groups on both the DD Form 350 and the DD Form 1057.
* * * * *
9. Section 204.7003 is amended by revising paragraph (a)(1)(i)(G)
to read as follows:
Sec. 204.7003 Basic PII number.
(a) * * *
(1) * *
(i) * * *
(G) National Imagery and Mapping Agency NIMA
* * * * *
Sec. 204.7202-1 [Amended]
10. Section 204.7202-1 is amended by redesignating paragraph (c)(5)
as paragraph (d).
Sec. 204.7202-2 [Amended]
11. Section 204.7202-2 is amended in the introductory text by
revising, in the second sentence, the phrase ``Dun and Bradstreet'' to
read ``Dun & Bradstreet''; and in the introductory text of paragraph
(b)(1) by inserting the word ``Ask'' before the phrase ``Dun &
Bradstreet''.
PART 208--REQUIRED SOURCES OF SUPPLIES AND SERVICES
12. Section 208.002 is amended by revising paragraph (f) to read as
follows:
Sec. 208.002 Use of other Government supply sources.
(f) Detailed information on strategic and critical materials in
excess of national stockpile requirements (e.g., metals, ores,
chemicals) is available from the Defense National Stockpile Center,
8725 John J. Kingman Road, Suite 4616, Fort Belvoir, VA 22060-6223.
* * * * *
13. Section 208.7203 is amended by revising paragraph (c); by
removing paragraph (d); by redesignating paragraphs (e) through (g) as
paragraphs (d) through (f), respectively; and by revising newly
designated paragraph (d). The revised text reads as follows:
Sec. 208.7203 Authority.
* * * * *
(c) Acquisition of items restricted under 225.7010 and 225.71;
(d) Use of multiyear contracting (FAR subpart 17.1);
* * * * *
PART 209--CONTRACTOR QUALIFICATIONS
14. Section 209.104-1 is amended by revising the first sentence of
paragraph (g)(ii)(C) introductory text, by adding paragraph (g)(ii)(D),
and by removing paragraph (g)(iii). The revised and added text reads as
follows:
Sec. 209.104-1 General standards.
* * * * *
(g) * * *
(ii) * * *
(C) In accordance with 10 U.S.C. 2536(b)(1)(A), the Secretary of
Defense may waive the prohibition in paragraph (g)(ii)(A) of this
subsection upon determining that the waiver is essential to the
national security interest of the United States.* * *
* * * * *
(D) In accordance with 10 U.S.C. 2536(b)(1)(B), the Secretary of
Defense may, in the case of a contract awarded for environmental
restoration, remediation, or waste management at a DoD facility, waive
the prohibition in paragraph (g)(ii)(A) of this subsection upon--
(1) Determining that--
(i) The waiver will advance the environmental restoration,
remediation, or waste management objectives of DoD and will not harm
the national security interests of the United States; and
[[Page 34122]]
(ii) The entity to which the contract is awarded is controlled by a
foreign government with which the Secretary is authorized to exchange
Restricted Data under section 144c. of the Atomic Energy Act of 1954
(42 U.S.C. 2164(c)); and
(2) Notifying Congress of the decision to grant the waiver. The
contract may be awarded only after the end of the 45-day period
beginning on the date the notification is received by the appropriate
Congressional committees.
Sec. 209.104-70 [Amended]
15. Section 209.104-70 is amended by revising the section heading
to read ``Solicitation provisions.''; and by removing paragraphs (c)
and (d).
PART 212--ACQUISITION OF COMMERCIAL ITEMS
Sec. 212.301 [Amended]
16. Section 212.301 is amended in paragraph (f)(iii) by inserting,
after the word ``Statutes'', the phrase ``or Executive Orders''.
PART 214--SEALED BIDDING
Secs. 214.406 and 214.406-3 [Redesignated]
17. Sections 214.406 and 214.406-3 are redesignated as sections
214.407 and 214.407-3, respectively.
18. Newly designated section 214.407-3 is amended by revising in
the introductory text of paragraph (e) the reference ``FAR 14.406-3''
to read ``FAR 14.407-3'', and by revising paragraphs (e)(v) to read as
follows:
Sec. 214.407-3 Other mistakes disclosed before award.
(e) * * *
(v) National Imagery and Mapping Agency; General Counsel, NIMA.
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
19. Section 215.872-4 is amended by revising paragraph (d)(1) to
read as follows:
Sec. 215.872-4 Applicability.
* * * * *
(d) * * *
(1) Acquiring commercial items (see FAR Part 12);
* * * * *
PART 216--TYPES OF CONTRACTS
20. Section 216.203-4-70 is amended by adding paragraph (c) to read
as follows:
Sec. 216.203-4-70 Additional clauses.
* * * * *
(c) Price adjustment for wage rates or material prices controlled
by a foreign government.
(1) The price adjustment clause at 252.216-7003, Economic Price
Adjustment--Wage Rates or Material Prices Controlled by a Foreign
Government, may be used in fixed-price supply and service contracts
when--
(i) The contract is to be performed wholly or in part in a foreign
country; and
(ii) A foreign government controls wage rates or material prices
and may, during contract performance, impose a mandatory change in
wages or prices of material.
(2) Verify the base wage rates and material prices prior to
contract award and prior to making any adjustment in the contract
price.
Sec. 216.307 [Removed]
21. Section 216.307 is removed.
PART 219--SMALL BUSINESS PROGRAMS
22. The heading of Subpart 219.6 is revised to read as follows:
Subpart 219.6--Certificates of Competency
Sec. 219.602-3 [Amended]
23. Section 219.602-3 is amended in paragraph (c)(i)(A) by removing
the phrase ``Central Office's'' and inserting the word ``Headquarters'
'' in its place.
Secs. 219.808 through 219.811-3 [Removed]
24. Sections 219.808 through 219.811-3 are removed.
Sec. 219.1005 [Amended]
25. Section 219.1005 is amended in paragraph (a) by removing the
introductory text.
26. Section 219.1006 is amended by revising paragraph (b)(2) to
read as follows:
Sec. 219.1006 Procedures.
(b) * * *
(2) The Director, Small and Disadvantaged Business Utilization,
Office of the Deputy Under Secretary of Defense (International &
Commercial Programs), will determine whether reinstatement of small
business set-asides are necessary to meet the agency goal and will
recommend reinstatement to the Director, Defense Procurement. Military
departments and defense agencies shall not reinstate small business
set-asides unless directed by the Director, Defense Procurement.
* * * * *
PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
27. Subpart 222.72 is added to read as follows:
Subpart 222.72--Compliance with Labor Laws of Foreign Governments
Sec.
222.7200 Scope of subpart.
222.7201 Contract clauses.
Sec. 222.7200 Scope of subpart.
This subpart prescribes contract clauses, with respect to labor
laws of foreign governments, for use when contracting for services or
construction within a foreign country.
Sec. 222.7201 Contract clauses.
(a) Use the clause at 252.222-7002, Compliance with Local Labor
Laws (Overseas), in solicitations and contracts for services or
construction to be performed outside the United States, its
possessions, and Puerto Rico.
(b) Use the clause at 252.222-7003, Permit from Italian
Inspectorate of Labor, in solicitations and contracts for porter,
janitorial, or ordinary facility and equipment maintenance services to
be performed in Italy.
(c) Use the clause at 252.222-7004, Compliance with Spanish Social
Security Laws and Regulations, in solicitations and contracts for
services or construction to be performed in Spain.
PART 224--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Sec. 224.202 [Redesignated]
28. Section 224.202 is redesignated as section 224.203.
PART 225--FOREIGN ACQUISITION
Sec. 225.202 [Amended]
29. Section 225.202 is amended by redesignating paragraph (b) as
paragraph (a)(3).
Secs. 225.205 and 225.205-70 [Removed]
30. Sections 225.205 and 225.205-70 are removed.
Sec. 225.403 [Amended]
31. Section 225.403 is amended by redesignating paragraphs (c) and
(d)(1)(A) as paragraphs (b) and (c)(1)(A), respectively.
32. Section 225.872-1 is amended by adding paragraph (d) to read as
follows:
Sec. 225.872-1 General.
* * * * *
(d) The Secretary of Defense has waived the restrictions of 10
U.S.C. 2534(a) for the acquisition of defense
[[Page 34123]]
items manufactured in a qualifying country listed in paragraph (a) or
(b) of this subsection, in accordance with the provisions of 10
U.S.C. 2534(d)(3).
33. Section 225.872-2 is amended by revising paragraph (a)(3) to
read as follows:
Sec. 225.872-2 Applicability.
(a) * * *
(3) Other U.S. laws or regulations (e.g., the annual defense
appropriations act); and
* * * * *
34. Sections 225.971 and 225.972 are added to read as follows:
Sec. 225.971 Correspondence in English.
Use the clause at 252.225-7041, Correspondence in English, in
solicitations and contracts when contract performance will be wholly or
in part in a foreign country.
Sec. 225.972 Authorization to perform.
Use the clause at 252.225-7042, Authorization to Perform, in
solicitations and contracts when contract performance will be wholly or
in part in a foreign country.
35. The heading of Subpart 225.70 is revised to read as follows:
Subpart 225.70--Authorization Acts, Appropriations Acts, and Other
Statutory Restrictions on Foreign Acquisition
36. Section 225.7005 is revised to read as follows:
Sec. 225.7005 Waiver of certain restrictions.
(a) The Secretary of Defense has waived the restrictions of 10
U.S.C. 2534(a) for the acquisition of defense items manufactured in a
qualifying country listed in 225.872-1, in accordance with the
provisions of 10 U.S.C. 2534(d)(3).
(b) Where provided for elsewhere in this subpart, the restrictions
on certain foreign purchases under 10 U.S.C. 2534(a) may be waived as
follows:
(1) The head of the contracting activity may waive the restriction
on a case-by-case basis upon execution of a determination and findings
that any of the following applies:
(i) The restriction would cause unreasonable dalays.
(ii) United States producers of the item would not be jeopardized
by competition from a foreign country, and that country does not
discriminate against defense items produced in the United States to a
greater degree than the United States discriminates against defense
items produced in that country.
(iii) Application of the restriction would impede cooperative
programs entered into between DoD and a foreign country, and that
country does not discriminate against defense items produced in the
United States to a greater degree than the United States discriminates
against defense items produced in that country.
(iv) Satisfactory quality items manufactured in the United States
or Canada are not available.
(v) Application of the restriction would result in the existence of
only one source for the item in the United States or Canada.
(vi) Application of the restriction is not in the national security
interests of the United States.
(vii) Application of the restriction would adversely affect a U.S.
company.
(2) The restriction is waived when it would cause unreasonable
costs. The cost of the item of U.S. or Canadian origin is unreasonable
if it exceeds 150 percent of the offered price, inclusive of duty, of
items which are not of U.S. or Canadian origin.
37. Section 225.7007-1 is revised to read as follows:
Sec. 225.7007-1 Restriction.
In accordance with 10 U.S.C. 2534 and 225.7005(a), do not acquire a
multipassenger motor vehicle (bus) unless it is manufactured in the
United States or a qualifying country.
38. Section 225.7007-3 is revised to read as follows:
Sec. 225.7007-3 Exceptions.
This restriction does not apply in any of the following
circumstances:
(a) Buses manufactured in nonqualifying countries are needed for
temporary use because buses manufactured in the United States or a
qualifying country are not available to satisfy requirements that
cannot be postponed. Such use may not, however, exceed the lead time
required for acquisition and delivery of buses manufactured in the
United States or a qualifying country.
(b) The requirement for buses is temporary in nature. For example,
to meet a special, nonrecurring requirement or a sporadic and
infrequent recurring requirement, buses manufactured in nonqualifying
countries may be used for temporary periods of time. Such use may not,
however, exceed the period of time needed to meet the special
requirement.
(c) Buses manufactured in nonqualifying countries are available at
no cost to the U.S. Government.
(d) The acquisition is for an amount that does not exceed the
simplified acquisition threshold.
39. Section 225.7007-4 is revised to read as follows:
Sec. 225.7007-4 Waiver.
The waiver criteria at 225.7005(b) apply to this restriction.
Sec. 225.7009 [Removed and reserved]
40. Section 225.7009 is removed and reserved.
41. Section 225.7010-1 is amended by revising the introductory text
and paragraph (a) to read as follows:
Sec. 225.7010-1 Restriction.
In accordance with 10 U.S.C. 2534 and defense industrial
mobilization requirements (see subpart 208.72), do not acquire chemical
weapons antidote contained in automatic injectors, or the components
for such injectors, unless the injector or component is manufactured in
the United States or Canada by a company that--
(a) Is a producer under the industrial preparedness program at the
time of contract award;
* * * * *
42. Section 225.7010-2 is revised to read as follows:
Sec. 225.7010-2 Exception.
In accordance with 10 U.S.C. 2534(g) and 225.7005(a), the
restriction of 225.7010-1 does not apply to the acquisition of
quantities of chemical weapons antidote contained in automatic
injectors, or the components for such injectors, that exceed the amount
needed to maintain the U.S. defense mobilization base (provided such
quantity is an economical purchase quantity), if--
(a) The acquisition is for an amount that does not exceed the
simplified acquisition threshold; or
(b) The chemical weapons antidote contained in automatic injectors,
or the components for such injectors are manufactured in a qualifying
country.
43. Section 225.7010-3 is revised to read as follows:
Sec. 225.7010-3 Waiver.
The waiver criteria at 225.7005(b) apply to this restriction.
Sec. 225.7013 [Removed and reserved]
44. Section 225.7013 is removed and reserved.
Secs. 225.7013-1 and 225.7013-2 [Removed]
45. Sections 225.7013-1 and 225.7013-2 are removed.
46. Section 115.7016-1 is revised to read as follows:
Sec. 225.7016-1 Restriction.
In accordance with 10 U.S.C. 2534 and 225.7005(a), do not acquire
air circuit breakers for naval vessels unless they are manufactured in
the United States or a qualifying country.
[[Page 34124]]
47. Section 225.7016-2 is revised to read as follows:
Sec. 225.7016-2 Exceptions.
This restriction does not apply if--
(a) The acquisition is for an amount that does not exceed the
simplified acquisition threshold; or
(b) Spare or repair parts are needed to support air circuit
breakers manufactured in a nonqualifying country. Support includes the
purchase of spare air circuit breakers where those from alternate
sources are not interchangeable.
48. Section 225.7016-3 is revised to read as follows:
Sec. 225.7016-3 Waiver.
The waiver criteria at 225.7005(b) apply to this restriction.
49. Section 225.7019-1 is amended by revising paragraph (a) to read
as follows:
Sec. 225.7019-1R Restrictions.
(a) In accordance with 10 U.S.C. 2534 and 225.7005(a), through
fiscal year 2000, do not acquire ball and roller bearings or bearing
components that are not manufactured in the United States or a
qualifying country.
* * * * *
50. Section 225.7019-3 is amended by revising paragraph (a)(1)(iv);
by redesignating paragraphs (a)(2) and (a)(3) as paragraphs (a)(3) and
(a)(4), respectively; and by adding a new paragraph (a)(2). The revised
and added text reads as follows:
Sec. 225.7019-3 Waiver.
(a) * * *
(1) * * *
(iv) Application of the restriction would impede cooperative
programs entered into between DoD and a foreign country, and that
country does not discriminate against defense items produced in the
United States to a greater degree than the United States discriminates
against defense items produced in that country;
* * * * *
(2) If the acquisition is for an amount less than the simplified
acquisition threshold and simplified acquisition procedures are being
used.
* * * * *
Sec. 225.7020 [Removed and reserved]
51. Section 225.7020 is removed and reserved.
Secs. 225.7020-1 and 225.7020-2 [Removed]
52. Sections 225.7020-1 and 225.7020-2 are removed.
53. Section 225.7022-1 is amended by revising paragraph (b) to read
as follows:
Sec. 225.7022-1 Restrictions.
* * * * *
(b) In accordance with 10 U.S.C. 2534(a)(3)(B) and 225.7005(a), do
not purchase a totally enclosed lifeboat that is a component of a naval
vessel, unless it is manufactured in the United States or a qualifying
country. In accordance with 10 U.S.C. 2534(h), this restriction may not
be implemented through the use of a contract clause or certification.
Implementation shall be effected through management and oversight
techniques that achieve the objective of the restriction without
imposing a significant management burden on the Government or the
contractor involved.
54. Section 225.7022-2 is revised to read as follows:
Sec. 225.7022.2 Exceptions.
The restriction in 225.7022-1(b) does not apply if--
(a) The acquisition is for an amount that does not exceed the
simplified acquisition threshold; or
(b) Spare or repair parts are needed to support totally enclosed
lifeboats manufactured in a nonqualifying country.
55. Section 225.7022-3 is revised to read as follows:
Sec. 225.7022-3 Waiver.
The waiver criteria at 225.7005(b) apply only to the restriction of
225.7022-1(b).
56. Subpart 225.71 is revised to read as follows:
Subpart 225.71--Other Restrictions on Foreign Acquisition
Sec.
225.7100 Scope of subpart.
225.7101 Definitions.
225.7102 Forgings.
225.7102-1 Policy.
225.7102-2 Exceptions.
225.7102-3 Waiver.
225.7102-4 Contract clause.
225.7103 Polyacrylonitrile (PAN) carbon fiber.
225.7103-1 Policy.
225.7103-2 Waivers.
225.7103-3 Contract clause.
Sec. 225.7100 Scope of subpart.
This subpart contains foreign product restrictions which are based
on policies designed to protect the defense industrial base.
Sec. 225.7101 Definitions.
Relevant definitions are in the clause at 252.225-7025, Restriction
on Acquisition of Forgings.
Sec. 225.7102 Forgings.
Sec. 225.7102-1 Policy.
DoD requirements for the following forging items, whether as end
items or components, shall be acquired from domestic sources (as
described in the clause at 252.225-7025) to the maximum extent
practicable--
------------------------------------------------------------------------
Items Categories
------------------------------------------------------------------------
Ship propulsion shafts.................... Excludes service and landing
craft shafts.
Periscope tubes........................... All.
Ring forgings for bull gears.............. All greater than 120 inches
in diameter.
------------------------------------------------------------------------
Sec. 225.7102-2 Exceptions.
The policy in 225.7102-1 does not apply to acquisitions--
(a) Using simplified acquisition procedures, unless the restricted
item is the end item being purchased;
(b) Overseas for overseas use; or
(c) When the quantity acquired exceeds the amount needed to
maintain the U.S. defense mobilization base (provided such quantity is
an economical purchase quantity). The restriction to domestic sources
does not apply to the quantity above that required to maintain the
base, in which case, qualifying country sources may compete.
Sec. 225.7102-3 Waiver.
Upon request from a prime contractor, the contracting officer may
waive the requirement for domestic manufacture of the items covered by
the policy in 225.7102-1.
Sec. 225.7102-4 Contract clause.
(a) Use the clause at 252.225-7025, Restriction on Acquisition of
Forgings, in solicitations and contracts, except for acquisitions--
(1) Excepted in 225.7102-2; or
(2) Where the contracting officer knows that the supplies being
acquired do not contain the restricted items.
(b) If an exception under 225.7102-2 applies to any portion of the
acquisition, specify the exception in the solicitation and contract.
Sec. 225.7103 Polyacrylonitrile (PAN) carbon fiber.
Sec. 225.7103-1 Policy.
All new major systems must use U.S. or Canadian manufacturers or
producers for all PAN carbon fiber requirements.
Sec. 225.7103-2 Waivers.
Contracting officers may, with the approval of the chief of the
contracting office, waive, in whole or in part, the requirement of the
clause at 252.225-7022. For example, a waiver may be
[[Page 34125]]
justified if a qualified U.S. or Canadian source cannot meet scheduling
requirements.
Sec. 225.7103-3 Contract clause.
Use the clause at 252.225-7022, Restriction on Acquisition of
Polyacrylonitrile (PAN) Carbon Fiber, in all acquisitions for major
systems (as defined in FAR part 2) that are not yet in production
(milestone III as defined in DoD 50002.2-R, Mandatory Procedures for
Major Defense Acquisition Programs (MDAPS) and Major Automated
Information system (MAIS) Acquisition Programs). Also use the clause in
contracts for major systems if the clause was used in prior program
contracts.
57. Section 225.7307 is revised to read as follows:
Sec. 225.7307 Offset arrangements.
In accordance with the Presidential policy statement of April 16,
1990, DoD does not encourage, enter into, or commit U.S. firms to FMS
offset arrangements. The decision whether to engage in offsets, and the
responsibility for negotiating and implementing offset arrangements,
resides with the companies involved.
Secs. 225.7307-1 and 225.7307-2 [Removed]
58. Sections 225.7307-1 and 225.7307-2 are removed.
PART 227--PATENTS, DATA, AND COPYRIGHTS
59. Section 227.676 is added to read as follows:
Sec. 227.676 Foreign patent interchange agreements.
(a) Patent interchange agreements between the United States and
foreign governments provide for the use of patent rights, compensation,
free licenses, and the establishment of committees to review and make
recommendations on these matters. The agreements also may exempt the
United States from royalty and other payments. The contracting officer
shall ensure that royalty payments are consistent with patent
interchange agreements.
(b) Assistance with patent rights and royalty payments in the
United States European Command (USEUCOM) area of responsibility is
available from HQ USEUCOM, ATTN: ECLA, Unit 30400, Box 1000, APO AE
09128; Telephone: DSN
430-7474, Commercial 49-0711-680-7474; Telefax: 49-0711-680-7408.
PART 228--BONDS AND INSURANCE
50. Section 228.370 is amended by adding paragraph (f) to read as
follows:
Sec. 228.370 Additional clauses.
* * * * *
(f) Use the clause at 252.228-7006, Compliance with Spanish Laws
and Insurance, in solicitations and contracts for services or
construction to be performed in Spain by other than a Spanish
contractor or subcontractor.
PART 229--TAXES
61. Section 229.101 is amended by redesignating paragraphs (d)(i),
(d)(ii), and (d)(iii) as paragraphs (d)(iii), (d)(iv), and (d)(v),
respectively; and by adding new paragraphs (d)(i), (d)(ii), and (d)(vi)
to read as follows:
Sec. 229.101 Resolving tax problems.
* * * * *
(d)(i) Tax relief agreements between the United States and foreign
governments in Europe that exempt the United States from payment of
specific taxes on purchases made for common defense purposes are
maintained by the United States European Command (USEUCOM). For further
information contact HQ USEUCOM, Attn: ECLA, Unit 30400, Box 1000, APO
AE 09128; Telephone; DSN 430-7474, Commercial 49-0711-680-7474;
Telefax: 49-0711-680-7408.
(ii) Tax relief also may be available in countries that have not
signed tax relief agreements. The potential for such relief should be
explored in accordance with paragraph (d)(iii) of this section.
* * * * *
(vi) Also see subpart 229.70 for special procedures for obtaining
tax relief and duty-free import privileges when conducting U.S.
Government acquisitions in certain foreign countries.
* * * * *
62. Subpart 229.4 is added to read as follows:
Subpart 229.4--Contract Clauses
Sec.
229.402 Foreign contracts.
229.402-1 Foreign fixed-price contracts.
229.402-70 Additional clauses.
Sec. 229.402 Foreign contracts.
Sec. 229.402-1 Foreign fixed-price contracts.
Use the clause at 252.229-7000, Invoices Exclusive of Taxes or
Duties, in solicitations and contracts when a fixed-price contract will
be awarded to a foreign concern.
Sec. 229.402-70 Additional clauses.
(a) Use the clause at 252.229-7001, Tax Relief, in solicitations
and contracts when a contract will be awarded to a foreign concern in a
foreign country. When contract performance will be in Germany, use the
clause with its Alternate I.
(b) Use the clause at 252.229-7002, Customs Exemptions (Germany),
in solicitations and contracts requiring the import of U.S.
manufactured products into Germany.
(c) Use the clause at 252.229-7003, Tax Exemptions (Italy), in
solicitations and contracts when contract performance will be in Italy.
(d) Use the clause at 252.229-7004, Status of Contractor as a
Direct Contractor (Spain), in solicitations and contracts requiring the
import into Spain of supplies for construction, development,
maintenance, or operation of Spanish-American installations and
facilities.
(e) Use the clause at 252.229-7005, Tax Exemptions (Spain), in
solicitations and contracts when contract performance will be in Spain.
(f) Use the clause at 252.229-7006, Value Added Tax Exclusion
(United Kingdom), in solicitations and contracts when contract
performance will be in the United Kingdom.
(g) Use the clause at 252.229-7007, Verification of United States
Receipt of Goods, in solicitations and contracts when contract
performance will be in the United Kingdom.
(h) Use the clause at 252.229-7008, Relief from Import Duty (United
Kingdom), in solicitations issued and contracts awarded in the United
Kingdom.
(i) Use the clause at 252.229-7009, Relief from Customs Duty and
Value Added Tax on Fuel (Passenger Vehicles) (United Kingdom), in
solicitations issued and contracts awarded in the United Kingdom for
fuels (gasoline or diesel) and lubricants used in passenger vehicles
(excluding taxis).
(j) Use the clause at 252.229-7010, Relief from Customs Duty on
Fuel (United Kingdom), in solicitations issued and contracts awarded in
the United Kingdom that require the use of fuels (gasoline or diesel)
and lubricants in taxis or vehicles other than passenger vehicles.
63. Subpart 229.70 is added to read as follows:
Subpart 229.70--Special Procedures for Overseas Contracts
Sec.
229.7000 Scope of subpart.
229.7001 Tax exemption in Spain
229.7002 Tax exemption in the United Kingdom.
229.7002-1 Value added tax.
229.7002-2 Import duty.
229.7002-3 Value added tax or import duty problem resolution.
229.7002-4 Information required by HM Customs and Excise.
[[Page 34126]]
Sec. 229.7000 Scope of subpart.
This subpart prescribes procedures to be used by contracting
officers to obtain tax relief and duty-free import privileges when
conducting U.S. Government acquisitions in certain foreign countries.
Sec. 229.7001 Tax exemption in Spain.
(a) The Joint United States Military Group (JUSMG), Spain Policy
Directive 400.4, or subsequent directive, applies to U.S. contracting
offices acquiring supplies or services in Spain when the introduction
of material or equipment into Spain is required for contract
performance.
(b) Upon award of a contract with a Direct Contractor, as defined
in the clause at 252.229-7004, the contracting officer will notify
JUSMG-MAAG Madrid, Spain, and HQ 16AF/LGTT and forward three copies of
the contract to JUSMG-MAAG, Spain.
(c) If copies of the contract are not available and duty-free
import of equipment or materials is urgent, the contracting officer
will send JUSMG-MAAG three copies of the Letter of Intent or a similar
document indicating the pending award. In these cases, authorization
for duty-free import will be issued by the Government of Spain. Upon
formal award, the contracting officer will forward three copies of the
completed contract to JUSMG-MAAG, Spain.
(d) The contracting officer will notify JUSMG-MAAG, Spain, and HQ
16AF/LGTT of ports-of-entry and identify the customs agents who will
clear property on their behalf. Additional documents required for port-
of-entry and customs clearance can be obtained by contacting HQ 16AF/
LGTT. This information will be passed to the Secretaria General Tecnica
del Ministerio de Hacienda (Technical General Secretariat of the
Ministry of Finance). A list of customs agents may be obtained from the
600 ABG, APO AE 90646.
Sec. 229.7002 Tax exemption in the United Kingdom.
This section contains procedures to be followed in securing relief
from the British value added tax and import duties.
Sec. 229.7002-1 Value added tax.
(a) U.S. Government purchases qualifying for tax relief are
equipment, materials, facilities, and services for the common defense
effort and for foreign aid programs.
(b) To facilitate the resolution of issues concerning specific
waivers of import duty or tax exemption for U.S. Government purchases
(see 229.7002-3), contracting offices shall provide the name and
activity address of personnel who have been granted warranted
contracting authority to Her Majesty's (HM) Customs and Excise at the
following address: HM Customs and Excise, International Customs
Division G, Branch 4, Adelaide House, London Bridge, London EC4R 9DB.
Sec. 229.7002-2 Import duty.
No import duty shall be paid by the United States and contract
prices shall be exclusive of duty, except when the administrative cost
compared to the low dollar value of a contract makes it impracticable
to obtain relief from contract import duty. In this instance, the
contracting officer shall document the contract file with a statement
that--
(a) The administrative burden of securing tax relief under the
contract was out of proportion to the tax relief involved;
(b) It is impracticable to secure tax relief;
(c) Tax relief is therefore not being secured; and
(d) The acquisition does not involve the expenditure of any funds
to establish a permanent military installation.
Sec. 229.7002-3 Value added tax or import duty problem resolution.
In the event a value added tax or import duty problem cannot be
resolved at the contracting officer's level, refer the issue to HQ
Third Air Force, Staff Judge Advocate, Unit 4840, Box 45, APO AE 09459.
Direct contact with HM Customs and Excise in London is prohibited.
Sec. 229.7002-4 Information required by HM Customs and Excise.
(a) School bus contacts. Provide one copy of the contract and all
modifications to HM Customs and Excise.
(b) Road fuel contracts. For contracts that involve an application
for relief from duty on the road fuel used in performance of the
contract, provide--
(1) To HM Customs and Excise--
(i) Contract number;
(ii) Name and address of contractor;
(iii) Type of work (e.g., laundry, transportation);
(iv) Area of work; and
(v) Period of performance.
(2) To the regional office of HM Custom and Excise to which the
contractor applied for relief from the duty on road fuel--copy of the
contract.
(c) Other contracts awarded to United Kingdom firms. Provide
information when requested by HM Customs and Excise.
PART 232--CONTRACT FINANCING
64. Section 232.806 is revised to read as follows:
Sec. 232.806 Contract clause.
(a)(1) Use the clause at 252.232-7008, Assignment of Claims
(Overseas), instead of the clause at FAR 52.232-23, Assignment of
Claims, in solicitations and contracts when contract performance will
be in a foreign country.
(2) Use Alternate I with the clause at FAR 52.232-23, Assignment of
Claims, unless otherwise authorized under 232.803(d).
PART 233--PROTESTS, DISPUTES, AND APPEALS
Sec. 233.214 [Redesignated]
65. Section 233.214 is redesignated as section 233.215.
66. Section 233.215-70 is added to read as follows:
Sec. 233.215-70 Additional contract clause.
Use the clause at 252.233-7001, Choice of Law (Overseas), in
solicitations and contracts when contract performance will be outside
of the United States, it possessions, and Puerto Rico, unless otherwise
provided for in a government-to-government agreement.
PART 234--MAJOR SYSTEM ACQUISITION
67. Section 234.003 is revised to read as follows:
Sec. 234.003 Responsibilities.
DoD 5000.1, Defense Acquisition, and DoD 5000.2-R, Mandatory
Procedures for Major Defense Acquisition Programs (MDAPs) and Major
Automated Information System (MAIS) Acquisition Programs, contain the
DoD implementation of OMB Circular A-109.
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
Sec. 235.006 [Amended]
68. Section 235.006 is amended in paragraph (b)(i)(C)(1)(iii) by
revising the parenthetical phrase ``(as defined in FAR 34.001)'' to
read ``(as defined in FAR 2.101)''.
69. Section 235.010 is amended in paragraph (b) by revising the
last sentence to read as follows:
Sec. 235.010 Scientific and technical reports.
(b) * * * Requests for eligibility and registration information
should be addressed to DTIC-BCS, 8725 John J. Kingman Road, Suite 0944,
Fort Belvoir, VA 22060-0944.
[[Page 34127]]
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
70. Section 236.274 is amended by revising paragraph (b)(2)(viii)
to read as follows:
Sec. 236.274 Construction in foreign countries.
* * * * *
(b) * * *
(2) * * *
(viii) Resolution of any forseeable problems that can be
appropriately included in the agreement.
71. Section 236.570 is amended by adding paragraph (d) to read as
follows:
Sec. 236.570 Additional provisions and clauses.
* * * * *
(d) Also see 246.710(4) for an additional clause applicable to
construction contracts to be performed in Germany.
72. Section 236.609-70 is amended by revising the section heading
to read as follows:
Sec. 236.609-70 Additional provision and clause.
* * * * *
PART 237--SERVICE CONTRACTING
Sec. 237.7102 [Amended]
73. Section 237.7102 is amended in paragraphs (a) and (b) by
revising the word ``Instructions'' to read ``Instruction''.
PART 239--ACQUISITION OF INFORMATION RESOURCES
74. Section 239.7003 is amended in paragraph (f)(1) by revising the
first sentence to read as follows:
Sec. 239.7003 Procedures.
* * * * *
(f) * * *
(1) Send an SF 120, Report of Excess Personal Property, to the
Defense Information Systems Agency, Chief Information Officer, Defense
Automation Resources Management Program Division, Attn: D03D, 701 South
Courthouse Road, Arlington, VA 22204-2199. * * *
* * * * *
75. Section 239.7102-3 is revised to read as follows:
Sec. 239.7102-3 Contract clause.
When contracting for computer equipment or systems that are to be
used to process classified information, use the clause at 252.239-7000,
Protection Against Compromising Emanations.
76. Section 239.7302 is amended by revising paragraph (b)(2)(i) to
read as follows:
Sec. 239.7302 Approvals and screening.
* * * * *
(b) * * *
(2) * * *
(i) Submits a request for screening the requirement against the
pool of Government-owned ADPE to determine if available excess
equipment could satisfy the contractor's needs. The request should
include the contractor's supporting documentation. The request is sent
to--
Defense Information Systems Agency, Chief Information Officer,
Defense Automation Resources Management Program Division, Attn:
D03D, 701 South Courthouse Road, Arlington, VA 22204-2199; or
* * * * *
Sec. 239.7500 [Amended]
77. Section 239.7500 is amended by removing the word ``resources''
and inserting the word ``technology'' in its place.
PART 242--CONTRACT ADMINISTRATION
78. Section 242.101 is amended in the introductory text of
paragraph (d)(i) and in paragraph (d)(ii) by revising ``Assistant
Secretary of Defense (Comptroller)'' to read ``Under Secretary of
Defense (Comptroller/Chief Financial Officer)''; and by revising
paragraph (d)(i)(A) to read as follows:
Sec. 242.101 Policy.
* * * * *
(d)(i) * * *
(A) Quality assurance, contract administration, and audit services
provided under a no-charge reciprocal agreement;
* * * * *
Sec. 242.102 [Amended]
79. Section 242.102 is amended in the introductory text of
paragraph (b)(ii) by removing ``Area Operations (DCMAO)'' and inserting
``Command (DCMC)'' in its place.
80. Section 242.1404-2-70 is revised to read as follows:
Sec. 242.1404-2-70 Additional clause.
Use the clause at 252.242-7003, Application for U.S. Government
Shipping Documentation/Instructions, when using the clause at FAR
52.242-10, F.o.b. Origin--Government Bills of Lading or Prepaid
Postage, or FAR 52.242-11, F.o.b. Origin--Government Bills of Lading or
Indicia Mail.
Subpart 242.70--[Removed and reserved]
81. Subpart 242.70 is removed and reserved.
PART 245--GOVERNMENT PROPERTY
82. Section 245.302-1 is amended by revising paragraph
(a)(4)(A)(2), the introductory text of paragraph (a)(4)(C), and
paragraph (b)(1) to read as follows:
Sec. 245.302-1 Policy.
(a)(4)(A) * * *
(2) To the Office of the Deputy Under Secretary of Defense
(Industrial Affairs and Installations) for projects exceeding the
limitations in paragraph (a)(4)(A)(1) of this subsection.
* * * * *
(C) Departments and agencies must submit reports of facilities
projects to the House and Senate Armed Services Committees--
* * * * *
(b)(1)(A) Industrial plant equipment. Before acquiring industrial
plant equipment--
(1) Submit a DD Form 1419, DoD Industrial Plant Equipment
Requisition, to the Defense Supply Center Richmond (DSCR), Attn: JH,
8000 Jefferson Davis Highway, Richmond, Va 23297-5100, in accordance
with AR 700-43/NAVSUP PUB 5009/AFM 78-9/DLAM 4215.1, Management of
Defense-Owned Industrial Plant Equipment, to determine whether
existing, reallocable Government-owned facilities can be used.
(2) Do not acquire any item listed on the DD Form 1419 until a
certificate of nonavailability is received from DSCR.
(B) Automatic data processing equipment. The administrative
contracting officer submits contractor requests to acquire automatic
data processing equipment to the Defense Information Systems Agency,
Chief Information Officer, Defense Automation Resources Management
Program Division, Attn: D03D, 701 South Courthouse Road, Arlington, VA
22204-2199, in accordance with the Defense Automation Resources
Management Manual.
Sec. 245.407 [Amended]
83. Section 245.407 is amended in paragraph (a)(ii) by removing the
abbreviation ``OASD(P&L)(PR)'' and inserting in its place the phrase
``the Office of the Deputy Under Secretary of Defense (Industrial
Affairs and Installations)''.
Sec. 245.505-6 [Amended]
84. Section 245.505-6 is amended in paragraph (2) by removing the
[[Page 34128]]
abbreviation ``DIPEC'' and inserting in its place the phrase ``Defense
Supply Center Richmond (DSCR)''.
85. Section 245.608-5 is amended by revising paragraphs (a)(2)(B)
(2) and (4) and by removing paragraph (d). The revised text reads as
follows:
Sec. 245.608-5 Special items screening.
(a) * * *
(2) * * *
(B) * * *
(2) Defense Supply Center Richmond--IPE components;
* * * * *
(4) Defense Information Systems Agency, Chief Information Officer,
Defense Automation Resources Management Program Division--ADPE
components.
86. Section 245.608-71 is amended by revising paragraph (a); and in
the introductory text of paragraph (b)(1) and paragraphs (b)(2)(i),
(b)(2)(ii)(C), (b)(3)(iii), (c), and (d) by removing the abbreviation
``DIPEC'' and inserting the abbreviation ``DSCR'' in its place. The
revised text reads as follows:
Sec. 245.608-71 Screening industrial plant equipment.
(a) Reporting. Within 15 days of receipt, the plant clearance
officer will forward two copies of the DD Form 1342, DoD Property
Record, to the Defense Supply Center Richmond (DSCR), ATTN: JH, 8000
Jefferson Davis Highway, Richmond, VA 23297-5100, for all IPE not
condition coded ``X'' or ``S.'' Process IPE condition coded ``X'' or
``S'' in accordance with department or agency procedures.
* * * * *
87. Section 245.608-72 is added to read as follows:
Sec. 245.608-72 Screening excess automatic data processing equipment
(ADPE).
Report ADPE that is Government-owned or leased by the contractor
(with Government purchase option or other interests, including use
rights) to the Defense Information Systems Agency, Defense Automation
Resources Management Program Division (DARMP). DARMP does all required
screening, including General Services Administration screening, for
ADPE. (See the Defense Automation Resources Management Manual.)
Sec. 245.7206 [Amended]
88. Section 245.7206 is amended in the introductory text and in
paragraph (j)(2) by removing the abbreviation ``DIPEC'' and inserting
the abbreviation ``DSCR'' in its place.
PART 246--QUALITY ASSURANCE
89. Section 246.710 is amended by adding paragraph (4) to read as
follows:
Sec. 246.710 Contract clauses.
* * * * *
(4) Use the clause at 252.246-7002, Warranty of Construction
(Germany), in solicitations and contracts for construction when a
fixed-price contact will be awarded and contract performance will be in
Germany.
PART 249--TERMINATION OF CONTRACTS
Sec. 249.110 [Amended]
90. Section 249.110 is amended in Table 49-1, Part III--Discussion
of Settlement, by revising the statement in paragraph 1.b. to read ``In
the case of a lump sum settlement, comment on the general basis for and
major factors concerning each element of cost and profit included.'';
and by revising in paragraph 4. the word ``terminations'' to read
``termination''.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Sec. 252.203-7001 [Amended]
91. Section 252.203-7001 is amended by revising the clause date to
read ``(JUN 1997)'', by revising in paragraph (g) the reference ``part
13'' to read ``part 2''; and by revising in paragraph (h) the phone
number ``(202) 307-1065'' to read ``(202) 616-3507''.
Secs. 252.209-7003 and 252.209-7004 [Removed and reserved]
92. Sections 252.209-7003 and 252.209-7004 are removed and
reserved.
Sec. 252.216-7002 [Removed and reserved]
93. Section 252.216-7002 is removed and reserved.
94. Section 252.216-7003 is added to read as follows:
Sec. 252.216-7003 Economic price adjustment--wage rates or material
prices controlled by a foreign government.
As prescribed in 216.203-4-70(c), use the following clause:
ECONOMIC PRICE ADJUSTMENT--WAGE RATES OR MATERIAL PRICES CONTROLLED BY
A FOREIGN GOVERNMENT (JUNE 1997)
(a) The Contractor represents that the prices set forth in this
contract--
(1) Are based on the wage rate(s) or material price(s)
established and controlled by the Government of________(Offeror
insert name of host country); and
(2) Do not include contingency allowances to pay for possible
increases in wage rates or material prices.
(b) If wage rates or material prices are revised by the
government named in paragraph (a) of this clause, the Contracting
Officer shall make an equitable adjustment in the contract price and
shall modify the contract to the extent that the Contractor's actual
costs of performing this contract are increased or decreased, as a
direct result of the revision, subject to the following:
(1) For increases in established wage rates or material prices,
the increase in contract unit price(s) shall be effective on the
same date that the government named in paragraph (a) of this clause
increased the applicable wage rate(s) or material price(s), but only
if the Contracting Officer receives the Contractor's written request
for contract adjustment within 10 days of the change. If the
Contractor's request is received later, the effective date shall be
the date that the Contracting Officer received the Contractor's
request.
(2) For decreases in established wage rates or material prices,
the decrease in contract unit price(s) shall be effective on the
same date that the government named in paragraph (a) of this clause
decreased the applicable wage rate(s) or material price(s). The
decrease in contract unit price(s) shall apply to all items
delivered on and after the effective date of the government's rate
or price decrease.
(c) No modification changing the contract unit price(s) shall be
executed until the Contracting Officer has verified the applicable
change in the rates or prices set by the government named in
paragraph (a) of this clause. The Contractor shall make available
its books and records that support a requested change in contract
price.
(d) Failure to agree to any adjustment shall be a dispute under
the Disputes clause of this contract.
(End of clause)
95. Section 252.219-7000 is amended by revising the clause date to
read ``(June 1997)'' and in paragraph (b) by revising the introductory
text and the first two entries to read as follows:
Sec. 252.219-7000 Small disadvantaged business concern representation
(DoD) contracts).
* * * * *
(b) Representations. Check the category in which your ownership
falls--
--Subcontinent Asian (Asian-Indian) American (U.S. citizen with origins
from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives
Islands, or Nepal)
--Asian-Pacific American (U.S. citizen with origins from Japan, China,
the Philippines, Vietnam, Korea, Samoa, Guam, U.S. Trust Territory of
the Pacific Islands (Republic of Palau), the Northern Mariana Islands,
Laos, Kampuchea (Cambodia), Taiwan, Burma, Thailand, Malaysia,
Indonesia, Singapore, Brunei, Republic of the Marshall Islands, the
Federated States of Micronesia,
[[Page 34129]]
Macao, Hong Kong, Fiji, Tonga, Kiribati, Tuvalu, or Nauru)
* * * * *
96. Section 252.219-7004 is amended by revising the clause date to
read ``(June 1997)'' and by revising paragraph (c) to read as follows:
Sec. 252.219-7004 Small, small disadvantaged and women-owned small
business subcontracting plan (test program).
* * * * *
(c) The Contractor shall submit Standard Form (SF) 295, Summary
Subcontract Report, in accordance with the instructions on the form,
except--
(1) One copy of the SF 295 and attachments shall be submitted to
Director, Small and Disadvantaged Business Utilization, Office of the
Deputy Under Secretary of Defense (International and Commercial
Programs), 3061 Defense Pentagon, Room 2A338, Washington, DC 20301-
3061; and
(2) Item 14, Remarks, shall be completed to include semi-annual
cumulative--
(i) Small business, small disadvantaged business, and women-owned
small business goals; and
(ii) Small business and small disadvantaged business goals, actual
accomplishments, and percentages for each of the two designated
industry categories.
* * * * *
97. Section 252.219-7006 is amended by revising the clause date to
read ``(June 1997)''; and by revising paragraphs (d)(1)(ii) and (d)(2)
and Alternate I to read as follows:
Sec. 252.219-7006 Notice of evaluation preference for small
disadvantaged business concerns.
* * * * *
(d) * * *
(1) * * *
(ii) Supplies (other than procurement from a regular dealer in
such supplies), at least 50 percent of the cost of manufacturing,
excluding the cost of materials, will be performed by the concern.
* * * * *
(2) A small disadvantaged business, historically black college
or university, or minority institution regular dealer submitting an
offer in its own name agrees to furnish in performing this contract
only end items manufactured or produced in the United States by
small disadvantaged business concerns, historically black colleges
or universities, or minority institutions.
* * * * *
ALTERNATE I (JUNE 1997)
As prescribed in 219.7003, substitute the following paragraph
(d)(2) for paragraph (d)(2) of the basic clause:
(d)(2) A small disadvantaged business, historically black
college or university, or minority institution regular dealer
submitting an offer in its own name agrees to furnish in performing
this contract only end items manufactured or produced in the United
States by small business concerns, historically black colleges or
universities, or minority institutions.
Sec. 252.219-7007 [Removed and reserved]
98. Section 252.219-7007 is removed and reserved.
99. Sections 252.222-7002, 252.222-7003, and 252.222-7004 are added
to read as follows:
Sec. 252.222-7002 Compliance with local labor laws (overseas).
As prescribed in 222.7201(a), use the following clause:
COMPLIANCE WITH LOCAL LABOR LAWS (OVERSEAS) (JUNE 1997)
(a) The Contractor shall comply with all--
(1) Local laws, regulations, and labor union agreements
governing work hours; and
(2) Labor regulations including collective bargaining
agreements, workers' compensation, working conditions, fringe
benefits, and labor standards or labor contract matters.
(b) The Contractor indemnifies and holds harmless the United
States Government from all claims arising out of the requirements of
this clause. This indemnity includes the Contractor's obligation to
handle and settle, without cost to the United States Government, any
claims or litigation concerning allegations that the Contractor or
the United States Government, or both, have not fully complied with
local labor laws or regulations relating to the performance of work
required by this contract.
(c) Notwithstanding paragraph (b) of this clause, consistent
with paragraphs 31.205-15(a) and 31.205-47(d) of the Federal
Acquisition Regulation, the Contractor will be reimbursed for the
costs of all fines, penalties, and reasonable litigation expenses
incurred as a result of compliance with specific contract terms and
conditions or written instructions from the Contracting officer.
(End of clause)
Sec. 252.222-7003 Permit from Italian Inspectorate of Labor.
As prescribed in 222.7201(b), use the following clause:
PERMIT FROM ITALIAN INSPECTORATE OF LABOR (JUNE 1997)
Prior to the date set for commencement of work and services
under this contract, the Contractor shall obtain the prescribed
permit from the Inspectorate of Labor having jurisdiction over the
work site, in accordance with Article 5g of Italian Law Number 1369,
dated October 23, 1960. The Contractor shall ensure that a copy of
the permit is available at all reasonable times for inspection by
the Contracting Officer or an authorized representative. Failure to
obtain such permit may result in termination of the contract for the
convenience of the United States Government, at no cost to the
United States Government.
(End of clause)
Sec. 252.222-7004 Compliance with Spanish social security laws and
regulations.
As prescribed in 222.7201(c), use the following clause:
COMPLIANCE WITH SPANISH SOCIAL SECURITY LAWS AND REGULATIONS (JUNE
1997)
(a) The Contractor shall comply with all Spanish Government
social security laws and regulations. Within 30 calendar days after
the start of contract performance, the Contractor shall ensure that
copies of the documents identified in paragraph (a)(1) through
(a)(5) of this clause are available at all reasonable times for
inspection by the Contracting Officer or an authorized
representative. The Contractor shall retain the records in
accordance with the Audit and Records clause of this contract.
(1) TC1--Certificate of Social Security Payments;
(2) TC2--List of Employees;
(3) TC2/1--Certificate of Social Security Payments for Trainees;
(4) Nominal (pay statements) signed by both the employee and the
Contractor; and
(5) Informa de Situacion de Empressa (Report of the Condition of
the Enterprise) from the Ministerio de Trabajo y S.S., Tesoreria
General de la Seguridad Social (annotated with the pertinent
contract number(s) next to the employee's name).
(b) All TC1's, TC2's, and TC2/1's shall contain a representation
that they have been paid by either the Social Security
Administration office or the Contractor's bank or savings
institution. Failure by the Contractor to comply with the
requirements of this clause may result in termination of the
contract under the clause of the contract entitled ``Default.''
(End of clause)
Sec. 252.225-7004 [Removed and reserved]
100. Section 252.225-7004 is removed and reserved.
101. Sections 252.225-7006 and 252.225-7007 are revised to read as
follows:
Sec. 252.225-7006 Buy American Act--trade agreements--Balance of
Payments Program certificate.
As prescribed in 225.408(a)(1), use the following provision:
BUY AMERICAN ACT--TRADE AGREEMENTS--BALANCE OF PAYMENTS PROGRAM
CERTIFICATE (JUNE 1997)
(a) Definitions. ``Caribbean Basin country end product,''
``designated country end product,'' ``domestic end product,''
``NAFTA country end product,'' ``nondesignated country end
product,'' ``qualifying country end product,'' and ``U.S. made end
product'' have the meanings given in the Trade Agreements and the
Buy American Act and Balance of Payments Program clauses of this
solicitation.
(b) Evaluation. Offers will be evaluated in accordance with the
policies and procedures
[[Page 34130]]
of Part 225 of the Defense Federal Acquisition Regulation
Supplement. Offers of foreign end products that are not U.S. made,
qualifying country, designated country, Caribbean Basin country, or
NAFTA country end products will not be considered for award, unless
the Contracting Officer determines that there are no offers of such
end products; or the offers of such end products are insufficient to
fulfill the requirements; or a national interest exception to the
Trade Agreements Act is granted.
(c) Certifications. (1) The Offeror certifies that--
(i) Each end product, except the end products listed in
paragraph (c)(2) of this provision, is a domestic end product (as
defined in the Buy American Act and Balance of Payments Program
clause of this solicitation); and
(ii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
(2) The Offeror must identify and certify all end products that
are not domestic end products.
(i) The Offeror certifies that the following supplies qualify as
``U.S. made end products'' but do not meet the definition of
``domestic end product'':
(insert line item number)
----------------------------------------------------------------------
(ii) The Offeror certifies that the following supplies are
qualifying country end products:
(insert line item number)
----------------------------------------------------------------------
(insert country of origin)
----------------------------------------------------------------------
(iii) The Offeror certifies that the following supplies qualify
as designated country end products:
(insert line item number)
----------------------------------------------------------------------
(insert country of origin)
----------------------------------------------------------------------
(iv) The Offeror certifies that the following supplies qualify
as Caribbean Basin country end products:
(insert line item number)
----------------------------------------------------------------------
(insert country of origin)
----------------------------------------------------------------------
(v) The Offeror certifies that the following supplies qualify as
NAFTA country end products:
(insert line item number)
----------------------------------------------------------------------
(insert country of origin)
----------------------------------------------------------------------
(vi) The Offeror certifies that the following supplies are other
nondesignated country end products.
(insert line item number)
----------------------------------------------------------------------
(insert country of origin)
----------------------------------------------------------------------
(End of provision)
Sec. 252.225-7007 Trade agreements.
As prescribed in 225.408(a)(2), use the following clause:
TRADE AGREEMENTS (JUNE 1997)
(a) Definitions. As used in this clause--
(1) ``Caribbean Basin country'' means--
Antigua and Barbuda
Aruba
Bahamas
Barbados
Belize
British Virgin Islands
Costa Rica
Dominica
Dominican Republic
El Salvador
Grenada
Guatemala
Guyana
Haiti
Honduras
Jamaica
Montserrat
Netherlands Antilles
Nicaragua
Panama
St. Kitts-Nevis
St. Lucia
St. Vincent and the Grenadines
Trinadad and Tobago
(2) ``Caribbean Basin country end product''--
(i) Means an article that--
(A) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
(B) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in a Caribbean Basin country into a new
and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was so
transformed. The term refers to a product offered for purchase under
a supply contract, but for purposes of calculating the value of the
end product includes services (except transportation services)
incidental to its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
(ii) Excludes products, other than petroleum and any product
derived from petroleum, that are not granted duty-free treatment
under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)).
These exclusions presently consist of--
(A) Textiles and apparel articles that are subject to textile
agreements;
(B) Footwear, handbags, luggage, flat goods, work gloves, and
leather wearing apparel not designated as eligible articles for the
purpose of the Generalized System of Preferences under Title V of
the Trade Act of 1974;
(C) Tuna, prepared or preserved in any manner in airtight
containers; and
(D) Watches and watch parts (including cases, bracelets, and
straps) of whatever type, including, but not limited to, mechanical,
quartz digital, or quartz analog, if such watches or watch parts
contain any material that is the product of any country to which
Harmonized Tariff Schedule column 2 rates of duty apply.
(3) ``Components,'' ``domestic end product,'' ``end product,''
``nonqualifying country,'' ``qualifying country,'' and ``qualifying
country end product'' have the meanings given in the Buy American
Act and Balance of Payments Program clause of this contract.
(4) ``Designated country'' means--
Aruba
Austria
Bangladesh
Belgium
Benin
Bhutan
Botswana
Burkina Faso
Burundi
Canada
Cape Verde
Central African Republic
Chad
Comoros
Denmark
Djibouti
Equatorial Guinea
Finland
France
Gambia
Germany
Greece
Guinea
Guinea-Bissau
Haiti
Ireland
Israel
Italy
Japan
Kiribati
Lesotho
Liechtenstein
Luxembourg
Malawi
Maldives
Mali
Mozambique
Nepal
Netherlands
Niger
Norway
Portugal
Republic of Korea
Rwanda
Sao Tome and Principe
Sierra Leone
Singapore
Somalia
Spain
Sweden
Switzerland
Tanzania U.R.
Togo
Tuvalu
Uganda
United Kingdom
Vanuatu
Western Samoa
Yemen
(5) ``Designated country end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of the
designated country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in a designated country into a new and
different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was so
transformed. The term
[[Page 34131]]
refers to a product offered for purchase under a supply contract,
but for purposes of calculating the value of the end product
includes services (except transportation services) incidental to its
supply, provided that the value of those incidental services does
not exceed the value of the product itself.
(6) ``NAFTA country end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of the NAFTA
country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in a NAFTA country into a new and
different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was so
transformed. The term refers to a product offered for purchase under
a supply contract, but for purposes of calculating the value of the
end product includes services (except transportation services)
incidental to its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
(7) ``Nondesignated country end product'' means any end product
that is not a U.S. made end product or a designated country end
product.
(8) ``North American Free Trade Agreement (NAFTA) country''
means Canada or Mexico.
(9) ``United States'' means the United States, its possessions,
Puerto Rico, and any other place subject to its jurisdiction, but
does not include leased bases or trust territories.
(10) ``U.S. made end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of the United
States; or
(ii) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in the United States into a new and
different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was so
transformed.
(b) Unless otherwise specified, the Trade Agreements Act of 1979
(19 U.S.C. 2501 et seq.), the North American Free Trade Agreement
Implementation Act of 1993 (19 U.S.C. 3301 note), and the Caribbean
Basin Initiative apply to all items in the Schedule.
(c)(1) The Contractor agrees to deliver under this contract only
domestic end products unless, in its offer, it specified delivery of
U.S. made, qualifying country, designated country, Caribbean Basin
country, NAFTA country, or other nondesignated country end products
in the Buy American Act--Trade Agreements--Balance of Payments
Program Certificate provision of the solicitation.
(2) The Contractor may not supply a nondesignated country end
product unless--
(i) It is a qualifying country end product, a Caribbean Basin
country end product, or a NAFTA country end product;
(ii) The Contracting Officer has determined that offers of U.S.
made end products or qualifying, designated, NAFTA, or Caribbean
Basin country end products from responsive, responsible offerors are
either not received or are insufficient to fill the Government's
requirements; or
(iii) A national interest waiver has been granted under section
302 of the Trade Agreements Act of 1979 (see FAR 25.402(c)).
(d) The offered price of end products listed and certified under
paragraphs (c)(2)(i) and (vi) of the Buy American Act--Trade
Agreements--Balance of Payments Program Certificate provision of the
solicitation must include all applicable duty. The offered price of
qualifying country end products, designated country end products,
NAFTA country end products, and Caribbean Basin country end products
for line items subject to the Trade Agreements Act, or the North
American Free Trade Agreement Implementation Act, should not include
custom fees or duty.
(End of clause)
Alternate I (June. 1997). As prescribed in 225.408(a)(2), delete
Singapore from the list of designated countries in paragraph (a)(4)
of the basic clause.
102. Section 252.225-7016 is amended by revising the clause date to
read ``(JUN 1997)''; and by revising paragraphs (b) and (c) to read as
follows:
Sec. 252.225-7016 Restriction on acquisition of ball and roller
bearings.
* * * * *
(b) The Contractor agrees that, except as provided in paragraph
(c) of this clause, all ball and roller bearings and ball and roller
bearing components (including miniature and instrument ball
bearings) delivered under this contract, either as end items or
components of end items, shall be wholly manufactured in the United
Stats or Canada. Unless otherwise specified, raw materials, such as
performed bar, tube, or rod stock and lubricants, need not be mined
or produced in the United States or Canada.
(c)(1) The restriction in paragraph (b) of this clause does not
apply to the extent that--
(i) The end items or components containing ball or roller
bearings are commercial items; or
(ii) The ball or roller bearings are commercial items
manufactured in a qualifying country listed in subsection 225.872-1
of the Defense Federal Acquisition Regulation Supplement.
(2) The commercial item exception in paragraph (c)(1) of this
clause does not include items designed or developed under a
Government contract or contracts where the end item is bearings and
bearing components.
* * * * *
103. Section 252.225-7022 is revised to read as follows:
Sec. 252.225-7022 Restriction on acquisition of polyacrylonitrile
(PAN) carbon fiber.
As prescribed in 225.7103-3, use the following clause:
RESTRICTION ON ACQUISITION OF POLYACRYLONITRILE (PAN) CARBON FIBER
(JUNE 1997)
(a) This clause applies only if the end product furnished under
this contract contains polyacrylonitrile carbon fibers
(alternatively referred to as PAN-based carbon fibers or PAN-based
graphite fibers).
(b) PAN carbon fibers contained in the end product shall be
manufactured in the United States or Canada using PAN precursor
produced in the United States or Canada.
(c) The Contracting Officer may waive the requirement in
paragraph (b) of this clause in whole or in part. The Contractor may
request a waiver from the Contracting Officer by identifying the
circumstances and including a plan to qualify U.S. or Canadian
sources expeditiously.
(End of clause)
104. Section 252.225-7025 is revised to read as follows:
Sec. 252.225-7025 Restriction on acquisition of forgings.
As prescribed in 225.7102-4, use the following clause:
RESTRICTION ON ACQUISITION OF FORGINGS (JUNE 1997)
(a) Definitions. As used in this clause--
(1) ``Domestic manufacture'' means manufactured in the United
States or Canada if the Canadian firm--
(i) Normally produces similar items or is currently producing
the item in support of DoD contracts (as prime or subcontractor);
and
(ii) Agrees to become (upon receiving a contract/order) a
planned producer under DoD's Industrial Preparedness Production
Planning Program, if it is not already a planned producer for the
item.
(2) ``Forging items'' means--
------------------------------------------------------------------------
Items Categories
------------------------------------------------------------------------
Ship propulsion shafts.................... Excludes service and landing
craft shafts.
Periscope tubes........................... All.
Ring forgings for bull gears.............. All greater than 120 inches
in diameter.
------------------------------------------------------------------------
(b) The Contractor agrees that end items and their components
delivered under this contract shall contain forging items that are
of domestic manufacture only.
(c) The restriction in paragraph (b) of this clause may be
waived upon request from the Contractor in accordance with
subsection 225.7102-3 of the Defense Federal Acquisition Regulation
Supplement.
(d) The Contractor agrees to retain records showing compliance
with this restriction until 3 years after final payment and to make
records available upon request of the Contracting Officer.
(e) The Contractor agrees to insert this clause, including this
paragraph (e), in subcontracts and purchase orders issued in
performance of this contract, when products purchased contain
restricted forging items.
(End of clause)
105. Section 252.225-7029 is revised to read as follows:
Sec. 252.225-7029 Preference for United States or Canadian air circuit
breakers.
As prescribed in 225.7016-4, use the following clause:
[[Page 34132]]
PREFERENCE FOR UNITED STATES OR CANADIAN AIR CIRCUIT BREAKERS (JUNE
1997)
(a) Unless otherwise specified in this offer, the Contractor
agrees that air circuit breakers for naval vessels provided under
this contract shall be manufactured in the United States or a
qualifying country listed in subsection 225.872-1 of the Defense
Federal Acquisition Regulation Supplement (DFARS).
(b) Unless an exception applies or a waiver is granted under
225.7005(b)(1) of the DFARS, preference will be given to air circuit
breakers manufactured in the United States or Canada by adding 50
percent for evaluation purposes to the offered price of all other
air circuit breakers, except air circuit breakers manufactured in a
qualifying country.
(End of clause)
Sec. 252.225-7034 [Removed and reserved]
106. Section 252.225-7034 is removed and reserved.
Sec. 252.225-7040 [Added and reserved]
107. Section 252.225-7040 is add and reserved.
108. Sections 252.225-7041 and 252-225-7042 are added to read as
follows:
Sec. 252.225-7041 Correspondence in English.
As prescribed in 225.971, use the following clause:
CORRESPONDENCE IN ENGLISH (JUNE 1997)
The Contractor shall ensure that all contract correspondence
that is addressed to the United States Government is submitted in
English or with an English translation.
(End of clause)
Sec. 252.225-7042 Authorization to perform.
As prescribed in 225.97, use the following clause:
AUTHORIZATION TO PERFORM (JUNE 1997)
The Contractor represents that it has been duly authorized to
operate and to do business in the country or countries in which this
contract is to be performed. The Contractor also represents that it
will fully comply with all laws, decrees, labor standards, and
regulations of such country or countries, during the performance of
this contract.
(End of clause)
Sec. 252.227-7030 [Amended]
109. Section 252.227-7030 is amended in the introductory text by
removing the reference ``227.7103-6(f)(2)'' and inserting in its place
the reference ``227.7103-6(e)(2)''.
110. Section 252.228-7006 is added to read as follows:
Sec. 252.8-7006 Compliance with Spanish laws and insurance.
As prescribed at 228.370(f), use the following clause:
COMPLIANCE WITH SPANISH LAWS AND INSURANCE (JUNE 1997)
(a) The Contractor shall, without additional expense to the
United States Government, comply with all applicable Spanish
Government laws pertaining to sanitation, traffic, security,
employment of labor, and all other laws relevant to the performance
of this contract. The Contractor shall hold the United States
Government harmless and free from any liability resulting from the
Contractor's failure to comply with such laws.
(b) The contractor shall, at its own expense, provide and
maintain during the entire performance of this contract, all
workmen's compensation, employees' liability, bodily injury
insurance, and other required insurance adequate to cover the risk
assumed by the Contractor. The Contractor shall indemnify and hold
harmless the United States Government from liability resulting from
all claims for damages as a result of death or injury to personnel
or damage to real or personal property related to the performance of
this contract.
(c) The Contractor agrees to represent in writing to the
Contracting Officer, prior to commencement of work and not later
than 15 days after the date of the Notice to Proceed, that the
Contractor has obtained the required types of insurance in the
following minimum amounts. The representation also shall state that
the Contractor will promptly notify the Contracting Officer of any
notice of cancellation of insurance or material change in insurance
coverage that could affect the United States Government's interests.
------------------------------------------------------------------------
Coverage
Type of insurance Coverage per Property
per person accident damage
------------------------------------------------------------------------
Comprehensive General Liability.. $300,000 $1,000,000 $100,000
------------------------------------------------------------------------
(d) The Contractor shall provide the Contracting Officer with a
similar representation for all subcontractors that will perform work
under this contract.
(e) Insurance policies required herein shall be purchased from
Spanish insurance companies or other insurance companies legally
authorized to conduct business in Spain. Such policies shall conform
to Spanish laws and regulations and shall--
(1) Contain provisions requiring submission to Spanish law and
jurisdiction of any problem that may arise with regard to the
interpretation or application of the clauses and conditions of the
insurance policy;
(2) Contain a provision authorizing the insurance company, as
subrogee of the insured entity, to assume and attend to directly,
with respect to any person damaged, the legal consequences arising
from the occurrence of such damages;
(3) Contain a provision worded as follows: ``The insurance
company waives any right of subrogation against the United States of
America that may arise by reason of any payment under this
policy.'';
(4) Not contain any deductible amount or similar limitation; and
(5) Not contain any provisions requiring submission to any type
of arbitration.
(End of clause)
111. Sections 252.229-7000 through 252.229-7010 are added to read
as follows:
Sec. 252.229-7000 Invoices exclusive of taxes or duties.
As prescribed in 229.402-1, use the following clause:
INVOICES EXCLUSIVE OF TAXES OR DUTIES (JUNE 1997)
Invoices submitted in accordance with the terms and conditions
of this contract shall be exclusive of all taxes or duties for which
relief is available.
(End of clause)
Sec. 252.229-7001 Tax relief.
As prescribed in 229.402-70(a), use the following clause:
TAX RELIEF (JUNE 1997)
(a) Prices set forth in this contract are exclusive of all taxes
and duties from which the United States Government is exempt by
virtue of tax agreements between the United States Government and
the Contractor's government. The following taxes or duties have been
excluded from the contract price:
NAME OF TAX: (Offeror Insert) RATE (PERCENTAGE): (Offeror Insert)
(b) The Contractor's invoice shall list separately the gross
price, amount of tax deducted, and net price charged.
(c) When items manufactured to United States Government
specifications are being acquired, the Contractor shall identify the
materials or components intended to be imported in order to ensure
that relief from import duties is obtained. If the Contractor
intends to use imported products from inventories on hand, the price
of which includes a factor for import duties, the Contractor shall
ensure the United States Government's exemption from these taxes.
The Contractor may obtain a refund of the import duties from its
government or request the duty-free import of an amount of supplies
or components corresponding to that used from inventory for this
contract.
(End of clause)
ALTERNATE I (JUNE 1997)
As prescribed in 229.402-70(a), add the following paragraph (d)
to the basic clause:
[[Page 34133]]
(d) Tax relief will be claimed in Germany pursuant to the
provisions of the Agreement Between the United States of America and
Germany Concerning Tax Relief to be Accorded by Germany to United
States Expenditures in the Interest of Common Defense. The
Contractor shall use Abwicklungsschein fuer abgabenbeguenstigte
Lieferungen/Leistungen nach dem Offshore Steuerabkommen (Performance
Certificate for Tax-Free Deliveries/Performance according to the
Offshore Tax Relief Agreement) or other documentary evidence
acceptable to the German tax authorities. All purchases made and
paid for on a tax-free basis during a 30-day period may be
accumulated, totaled, and reported as tax-free.
Sec. 252.229-7002 Customs exemptions (Germany).
As prescribed in 229.402-70(b), use the following clause:
CUSTOMS EXEMPTIONS (GERMANY) (JUNE 1997)
Imported products required for the direct benefit of the United
States Forces are authorized to be acquired duty-free by the
Contractor in accordance with the provisions of the Agreement
Between the United States of America and Germany Concerning Tax
Relief to be Accorded by Germany to United States Expenditures in
the Interest of Common Defense.
(End of clause)
Sec. 252.229-7003 Tax exemptions (Italy).
As prescribed in 229.402-70(c), use the following clause:
TAX EXEMPTIONS (ITALY) (JUNE 1997)
(a) The Contractor represents that the contract prices,
including the prices in subcontracts awarded hereunder, do not
include taxes from which the United States Government is exempt.
(b) The United States Government is exempt from payment of
Imposta Valore Aggiunto (IVA) tax in accordance with Article 72 of
the IVA implementing decree on all supplies and services sold to
United States Military Commands in Italy.
(1) Upon receipt of the invoice, the paying office will stamp
the following statement on one copy of the invoice:
``I certify that this invoice is true and correct and reflects
expenditures made in Italy for the Common Defense by the United
States Government pursuant to international agreements. The amount
to be paid does not include the IVA tax, because this transaction is
not subject to the tax in accordance with Article 72 of Decree Law
633, dated October 26, 1972.''
(2) This certified copy, signed by an authorized Government
official, will be returned together with payment to the Contractor.
The payment will not include the amount of IVA tax.
(3) The Contractor must retain this copy of the invoice with the
representation to substantiate non-payment of the IVA tax.
(c) In addition to the IVA tax, purchases by the United States
Forces in Italy are exempt from the following taxes:
(1) Imposta di Fabbricazione (Production Tax for Petroleum
Products).
(2) Imposta di Consumo (Consumption Tax for Electrical Power).
(3) Dazi Doganali (Customs Duties).
(4) Tassa di Sbarco e d'Imbarco sulle Merci Transportate per Via
Aerea e per Via Maritima (Port Fees).
(5) Tassa de Circolazione sui Veicoli (Vehicle Circulation Tax).
(6) Imposta di Registro (Registration Tax).
(7) Imposta di Bollo (Stamp Tax).
(d) The Contractor's administrative procedures for claiming and
validating the exemptions are as follows:
(1) Contract offer price shall reflect IVA or any other tax or
duty.
(2) Contract number must be set forth on Contractor invoices,
which should state the exemptions claimed pursuant to Article 72 of
Decree Law 633, dated October 26, 1972, for IVA exemption.
(3) Fiscal code for appropriated funds payments by Aviano Air
Base is: 91000190933.
(4) Questions may be addressed to the Ministry of Finance, 11th
District, Rome (06) 5910982.
(End of clause)
Sec. 252.229-7004 Status of contractors as a direct contractor
(Spain).
As prescribed in 229.402-70(d), use the following clause:
Status of Contractor as a Director Contract (Spain) (June 1997)
(a) ``Direct Contractor,'' as used in this clause, means an
individual, company, or entity with whom an agency of the United
States Department of Defense has executed a written agreement that
allows duty-free import of equipment, materials, and supplies into
Spain for the construction, development, maintenance, and operation
of Spanish-American installations and facilities.
(b) The Contractor is hereby designated as a Direct Contractor
under the provisions of Complementary Agreement 5, articles 11, 14,
15, 17, and 18 of the Agreement on Friendship, Defense and
Cooperation between the United States Government and the Kingdom of
Spain, dated July 2, 1982. The Agreement relates to contacts to be
performed in whole or part in Spain, the provisions of which are
hereby incorporated into and made a part of this contract by
reference.
(c) The Contractor shall apply to the appropriate Spanish
authorities for approval of status as a Direct Contractor in order
to complete duty-free import of non-Spanish equipment, materials,
and supplies represented as necessary for contract performance by
the Contracting Officer. Orders for equipment, materials, and
supplies placed prior to official notification of such approval
shall be at the Contractor's own risk. The Contractor must submit
its documentation in sufficient time to permit processing by the
appropriate United States and Spanish Government agencies prior to
the arrival of the equipment, material, or supplies in Spain.
Seasonal variations in processing times are common, and the
Contractor should program its projects accordingly. Any delay or
expense arising directly or indirectly from this process shall not
excuse untimely performance (except as expressly allowed in other
provisions of this contract), constitute a direct or constructive
change, or otherwise provide a basis for additional compensation or
adjustment of any kind.
(d) To ensure that all duty-free imports are properly accounted
for, exported, or disposed of, in accordance with Spanish law, the
Contractor shall obtain a written bank letter of guaranty payable to
the Treasurer of the United States, or such other authority as may
be designated by the Contracting Officer, in the amount set forth in
paragraph (g) of this clause, prior to effecting any duty-free
imports for the performance of this contract.
(e) If the Contractor fails to obtain the required guaranty, the
Contractor agrees that the Contracting Officer may withhold a
portion of the contract payments in order to establish a fund in the
amount set forth in paragraph (g) of this clause. The fund shall be
used for the payment of import taxes in the event that the
Contractor fails to properly account for, export, or dispose of
equipment, materials, or supplies imported on a duty-free basis.
(f) The amount of the bank letter of guaranty or size of the
fund required under paragraph (d) or (e) of this clause normally
shall be 5 percent of the contract value. However, if the Contractor
demonstrates to the Contracting Officer's satisfaction that the
amount retained by the United States Government or guaranteed by the
bank is excessive, the amount shall be reduced to an amount
commensurate with contingent import tax and duty-free liability.
This bank guaranty or fund shall not be released to the Contractor
until the Spanish General Directorate of Customs verifies the
accounting, export, or disposition of the equipment, material, or
supplies imported on a duty-free basis.
(g) The amount required under paragraph (d), (e), or (f) of this
clause is (Contracting Officer insert amount at time of contract
award).
(h) The Contractor agrees to insert the provisions of this
clause, including this paragraph (h), in all subcontracts.
(End of clause)
Sec. 252.229-7005 Tax exemptions (Spain).
As prescribed in 229.402-70(e), use the following clause:
Tax Exemptions (Spain) (June 1997)
(a) The Contractor represents that the contract prices,
including subcontract prices, do not include the taxes identified
herein, or any other taxes from which the United States Government
is exempt.
(b) In accordance with tax relief agreements between the United
States Government and the Spanish Government, and because the
incumbent contract arises from the activities of the United States
Forces in Spain, the contract will be exempt from the following
excise, luxury, and transaction taxes:
(1) Derechos de Aduana (Customs Duties).
(2) Impuesto de Compensacion a la Importacion (Compensation Tax
on Imports).
(3) Transmissiones Patrionomiales (Property Transfer Tax).
[[Page 34134]]
(4) Impuesto Sobre el Lujo (Luxury Tax).
(5) Actos Juridocos Documentados (Legal Official Transactions).
(6) Impuesto Sobre el Trafico de Empresas (Business Trade Tax).
(7) Impuestos Especiales de Fabricacion (Special Products Tax).
(8) Impuesto Sobre el Petroleo y Derivados (Tax on Petroleum and
its By-Products).
(9) Impuesto Sobre el Uso de Telefona (Telephone Tax).
(10) Impuesto General Sobre la Renta de Sociedades y demas
Entidades Juridicas (General Corporation Income Tax).
(11) Impuesto Industrial (Industrial Tax).
(12) Impuesto de Rentas Sobre el Capital (Capital Gains Tax).
(13) Plus Vailia (Increase on Real Property).
(14) Contribucion Territorial Urbana (Metropolitan Real Estate
Tax).
(15) Contribucion Territorial Rustica y Pecuaria (Farmland Real
Estate Tax).
(16) Impuestos de la Diputacion (County Service Charges).
(17) Impuestos Municipal y Tasas Parafiscales (Municipal Tax and
Charges).
(End of clause)
Sec. 252.229-7006 Value added tax exclusion (United Kingdom).
As prescribed in 229.402-70(f), use the following clause:
VALUE ADDED TAX EXCLUSION (UNITED KINGDOM) (JUNE 1997)
The supplies or services identified in this contract are to be
delivered at a price exclusive of value added tax under arrangements
between the appropriate United States authorities and Her Majesty's
Customs and Excise (Reference Priv 46/7). By executing this
contract, the Contracting Officer certifies that these supplies or
services are being purchased for United States Government official
purposes only.
(End of clause)
Sec. 252.229-7007 Verification of United States receipt of goods.
As prescribed in 229.402-70(g), use the following clause:
VERIFICATION OF UNITED STATES RECEIPT OF GOODS (JUNE 1997)
The Contractor shall insert the following statement on all
Material Inspection and Receiving Reports (DD Form 250 series) for
Contracting Officer approval: ``I certify that the items listed on
this invoice have been received by the United States.''
(End of clause)
Sec. 252.229-7008 Relief from import duty (United Kingdom).
As prescribed in 229.402-70(h), use the following clause:
RELIEF FROM IMPORT DUTY (UNITED KINGDOM) (JUNE 1997)
Any import dutiable articles, components, or raw materials
supplied to the United States Government under this contract shall
be exclusive of any United Kingdom import duties. Any imported items
supplied for which import duty already has been paid will be
supplied at a price exclusive of the amount of import duty paid. The
Contractor is advised to contact Her Majesty's (HM) Customs and
Excise to obtain a refund upon completion of the contract (Reference
HM Customs and Excise Notice No. 431, February 1973, entitled
``Relief from Customs Duty and/or Value Added Tax on United States
Government Expenditures in the United Kingdom'').
(End of clause)
Sec. 252.229-7009 Relief from customs duty and value added tax on fuel
(passenger vehicles) (United Kingdom).
As prescribed in 229.402-70(i), use the following clause:
RELIEF FROM CUSTOMS DUTY AND VALUE ADDED TAX ON FUEL (PASSENGER
VEHICLES) (UNITED KINGDOM) (JUNE 1997)
(a) Pursuant to an agreement between the United States
Government and Her Majesty's (HM) Customs and Excise, fuels and
lubricants used by passenger vehicles (except taxis) in the
performance of this contract will be exempt from customs duty and
value added tax. Therefore, the procedures outlined in HM Customs
and Excise Notice No. 431B, August 1982, and any amendment thereto,
shall be used to obtain relief from both customs duty and value
added tax for fuel used under the contract. These procedures shall
apply to both loaded and unloaded miles. The unit prices shall be
based on the recoupment by the Contractor of customs duty in
accordance with the following allowances:
(1) Vehicles (except taxis) with a seating capacity of less than
29, one gallon for every 27 miles.
(2) Vehicles with a seating capacity of 29-53, one gallon for
every 13 miles.
(3) Vehicles with a seating capacity of 54 or more, one gallon
for every 10 miles.
(b) In the event the mileage of any route is increased or
decreased within 10 percent, resulting in no change in route price,
the customs duty shall be reclaimed from HM Customs and Excise on
actual mileage performed.
(End of clause)
Sec. 252.229-7010 Relief from customs duty on fuel (United Kingdom).
As prescribed in 229.402-70(j), use the following clause:
RELIEF FROM CUSTOMS DUTY ON FUEL (UNITED KINGDOM) (JUNE 1997)
(a) Pursuant to an agreement between the United States
Government and Her Majesty's (HM) Customs and Excise, it is possible
to obtain relief from customs duty on fuels and lubricants used in
support of certain contracts. If vehicle fuels and lubricants are
used in support of this contract, the Contractor shall seek relief
from customs duty in accordance with HM Customs Notice No. 431,
February 1973, entitled ``Relief from Customs Duty and/or Value
Added Tax on United States Government Expenditures in the United
Kingdom.'' Application should be sent to the Contractor's local
Customs and Excise Office.
(b) Specific information should be included in the request for
tax relief, such as the number of vehicles involved, types of
vehicles, rating of vehicles, fuel consumption, estimated mileage
per contract period, and any other information that will assist HM
Customs and Excise in determining the amount of relief to be
granted.
(c) Within 30 days after the award of this contract, the
Contractor shall provide the Contracting Officer with evidence that
an attempt to obtain such relief has been initiated. In the event
the Contractor does not attempt to obtain relief within the time
specified, the Contracting Officer may deduct from the contract
price the amount of relief that would have been allowed if HM
Customs and Excise had favorably considered the request for relief.
(d) The amount of any rebate granted by HM Customs and Excise
shall be paid in full to the United States Government. Checks shall
be made payable to the Treasurer of the United States and forwarded
to the Administrative Contracting Officer.
(End of clause)
112. Section 252.232-7008 is added to read as follows:
Sec. 252.232-7008 Assignment of claims (overseas).
As prescribed in 232.806(a)(1), use the following clause:
ASSIGNMENT OF CLAIMS (OVERSEAS) (JUNE 1997)
(a) No claims for monies due, or to become due, shall be
assigned by the Contractor unless--
(1) Approved in writing by the Contracting Officer;
(2) Made in accordance with the laws and regulations of the
United States of America; and
(3) Permitted by the laws and regulations of the Contractor's
country.
(b) In no event shall copies of this contract of any plans,
specifications, or other similar documents relating to work under
this contract, if marked ``Top Secret,'' ``Secret,'' or
``Confidential'' be furnished to any assignee of any claim arising
under this contract or to any other person not entitled to receive
such documents. However, a copy of any part or all of this contract
so marked may be furnished, or any information contained herein may
be disclosed, to such assignee upon the Contracting Officer's prior
written authorization.
(c) Any assignment under this contract shall cover all amounts
payable under this contract and not already paid, and shall not be
made to more than one party, except that any such assignment may be
made to one party as agent or trustee for two or more parties
participating in such financing. On each invoice or voucher
submitted for payment under this contract to which any assignment
applies, and for which direct payment thereof is to be made to an
assignee, the Contractor shall--
(1) Identify the assignee by name and complete address; and
(2) Acknowledge the validity of the assignment and the right of
the named
[[Page 34135]]
assignee to receive payment in the amount invoiced or vouchered.
(End of clause)
Sec. 252.233-7000 [Added and reserved]
113. Section 252.233-7000 is added and reserved.
114. Section 252.233-7001 is added to read as follows:
Sec. 252.233-7001 Choice of law (overseas).
As prescribed in 233.215-70, use the following clause:
CHOICE OF LAW (OVERSEAS) (JUNE 1997)
This contract shall be construed and interpreted in accordance
with the substantive laws of the United States of America. By the
execution of this contract, the Contractor expressly agrees to waive
any rights to invoke the jurisdiction of local national courts where
this contract is performed and agrees to accept the exclusive
jurisdiction of the United States Armed Services Board of Contract
Appeals and the United States Court of Federal Claims for hearing
and determination of any and all disputes that may arise under the
Disputes clause of this contract.
(End of clause)
Sec. 252.234-7000 [Amended]
115. Section 252.234-7000 is amended in paragraph (a) by removing
the phrase ``Mandatory Procedures for Major Defense Acquisition
Programs and Major Automated Information Systems'' and inserting in its
place the phrase ``Mandatory Procedures for Major Defense Acquisition
Programs (MDAPs) and Major Automated Information System (MAIS)
Acquisition Programs''.
Sec. 252.234-7001 [Amended]
116. Section 252.234-7001 is amended in paragraph (a) by removing
the phrase ``Mandatory Procedures for Major Defense Acquisition
Programs and Major Automated Information Systems (MAIS) Acquisition
Programs''.
Sec. 252.243-7002 [Removed and reserved]
117. Section 252.242-7002 is removed and reserved.
Sec. 252.242-7003 [Amended]
118. Section 252.242-7003 is amended in the introductory test by
revising the reference ``252.1404-2-70(b)'' to read ``242.1404-2-70''.
Sec. 252.242-7005 [Amended]
119. Section 252.242-7005 is amended in paragraph (c) by removing
the phrase ``Mandatory Procedures for Major Defense Acquisition
Programs and Major Automated Information Systems'' and inserting in its
place the phrase ``Mandatory Procedures for Major Defense Acquisition
Programs (MDAPs) and Major Automated Information System (MAIS)
Acquisition Programs''.
Sec. 252.242-7006 [Amended]
120. Section 252.242-7006 is amended in paragraph (b) by removing
the phrase ``Mandatory Procedures for Major Defense Acquisition
Programs and Major Automated Information Systems'' and inserting in its
place the phrase ``Mandatory Procedures for Major Defense Acquisition
Programs (MDAPs) and Major Automated Information System (MAIS)
Acquisition Programs''.
121. Section 252.246-7002 is added to read as follows:
Sec. 252.246-7002 Warranty of construction (Germany).
As prescribed in 246.710(4), use the following clause:
WARRANTY OF CONSTRUCTION (GERMANY) (JUNE 1997)
(a) In addition to any other representations in this contract,
the Contractor warrants, except as provided in paragraph (j) of this
clause, that the work performed under this contract conforms to the
contract requirements and is free of any defect of equipment,
material, or design furnished or workmanship performed by the
Contractor or any subcontractor or supplier at any tier.
(b) This warranty shall continue for the period(s) specified in
Section 13, VOB, Part B, commencing from the date of final
acceptance of the work under this contract. If the Government takes
possession of any part of the work before final acceptance, this
warranty shall continue for the period(s) specified in Section 13,
VOB, Part B, from the date the Government takes possession.
(c) The Contractor shall remedy, at the Contractor's expense,
any failure to conform or any defect. In addition, the Contractor
shall remedy, at the Contractor's expense, any damage to Government-
owned or -controlled read or personal property when that damage is
the result of--
(1) The Contractor's failure to conform to contract
requirements; or
(2) Any defect of equipment, material, or design furnished or
workmanship performed.
(d) The Contractor shall restore any work damaged in fulfilling
the terms and conditions of this clause.
(e) The Contracting Officer shall notify the Contractor, in
writing, within a reasonable period of time after the discovery of
any failure, defect, or damage.
(f) If the Contractor fails to remedy any failure, defect, or
damage within a reasonable period of time after receipt of notice,
the Government shall have the right to replace, repair, or otherwise
remedy the failure, defect, or damage at the Contractor's expense.
(g) With respect to all warranties, express or implied, from
subcontractors, manufacturers, or suppliers for work performed and
materials furnished under this contract, the Contractor shall--
(1) Obtain all warranties that would be given in normal
commercial practice;
(2) Require all warranties to be executed in writing, for the
benefit of the Government, if directed by the Contracting Officer;
and
(3) Enforce all warranties for the benefit of the Government as
directed by the Contracting Officer.
(h) In the event the Contractor's warranty under paragraph (b)
of this clause has expired, the Government may bring suit at its
expense to enforce a subcontractor's, manufacturer's, or supplier's
warranty.
(i) Unless a defect is caused by the Contractor's negligence, or
the negligence of a subcontractor or supplier at any tier, the
Contractor shall not be liable for the repair of any defects of
material or design furnished by the Government or for the repair of
any damage resulting from any defeat in Government-furnished
material or design.
(j) This warranty shall not limit the Government's right under
the Inspection clause of this contract, with respect to latent
defects, gross mistakes, or fraud.
(End of clause)
PART 253--FORMS
122. Section 253.204-70 is amended by revising the heading of
paragraph (b)(2); the introductory text of paragraph (b)(13)(i)(E);
paragraph (B)(13)(i)(F); paragraph (B)(13)(iv)(C); paragraph (c)(2);
paragraph (c)(4)(iv)(A); paragraph (c)(4)(viii)(B)(8)(1); paragraph
(d)(5)(i)(J); paragraph (d)(5)(ii)(B); paragraph (d)(5)(iv)(E)(l); and
paragraph (d)(5)(x)(B)(14) to read as follows:
Sec. 253.204-70 DD Form 350, Individual Contracting Action Report.
* * * * *
(b) * * *
(2) Block B2, Modification, Order or Other ID Number.* * *
* * * * *
(13) * * *
(i) * * *
(E) Code 6--Order/Call under Federal Schedule. Enter code 6 if the
contracting action is a blanket purchase agreement call established
with a Federal schedule contractor pursuant to FAR 13.202(c)(3), or an
order under a--
* * * * *
(F) Code 8--Order from Procurement List. Enter code 8 if the
contracting action is an action placed with Federal Prison Industries
(UNICOR) or a JWOD Participating Nonprofit Agency in accordance with
FAR subpart 8.6 or 8.7. When the contracting action is a modification
to an action described in code 8 instructions, enter code 8 in B13A.
* * * * *
(iv) * * *
(C) Code C--Funding Action. Enter code C when the contracting
action is a modification (to a letter or other contract) for the sole
purpose of obligating or deobligating funds. This includes--
[[Page 34136]]
(1) Incremental funding (other than incremental yearly buys under
multiyear contracts, which are coded B);
(2) Changes to the estimated cost on cost-reimbursement contracts;
(3) Repricing actions covering incentive price revisions;
(4) Economic price adjustments; and
(5) Initial citation and obligation of funds for a contract awarded
in one fiscal year but not effective until a subsequent fiscal year.
* * * * *
(c) * *
(2) Do not complete Part C if the contracting action is an action
with a government agency, i.e., Block B5B (Government Agency) is coded
Y (Yes).
* * * * *
(4) * * *
(iv) * * *
(A) Code Y--Yes--Positive Response to 252.247-7022 or 252.212-
7000(c)(2).
Enter code Y when the contractor's response to the provision at
252.247-7022, Representation of Extent of Transportation by Sea, or
252.212-7000(c)(2), Offeror Representations and Certifications--
Commercial Items, indicates that the contractor anticipates that some
of the supplies being provided may be transported by sea.
* * * * *
(viii) * * *
(B) * * *
(8) * * *
(i) Set-aside for small business concerns (see FAR 6.203) including
small business innovation research (SBIR) actions and awards to
qualified nonprofit agencies employing people who are blind or severely
disabled which were participating in a set-aside for small business
concerns (see FAR 19.501(h)).
* * * * *
(d) * * *
(5) * * *
(i) * * *
(J) Code Z--Other Nonprofit. Enter code Z if the contractor is a
nonprofit institution (defined in FAR 31.701) which does not meet any
of the criteria in codes D, F, U, or V, and the place of performance is
within the United States and outlying areas.
* * * * *
(ii) * * *
(B) Code B--SDB Not Solicited. Enter code B when there was a known
SDB source, but it was not solicited.
* * * * *
(iv) * * *
(E) BLOCK D4E, PREMIUM PERCENT.
(1) Complete Block D4E if Block B1B is coded A and--
(i) Block D4B is coded C, D, or E; or
(ii) Block D4C is coded B or C. Otherwise, leave blank.
* * * * *
(x) * * *
(B) * * *
(14) Code U--Over $17,000,000.
* * * * *
123. Section 253.204-71 is amended by revising the last sentence of
paragraph (c)(1) and paragraph (d)(6)(i)(B) to read as follows:
Sec. 253.204-71 DD Form 1057, monthly contracting summary of actions
$25,000 or less.
* * * * *
(c) * * *
(1) * * * For example, enter January 31, 2003, as 20030131.
* * * * *
(d) * * *
(6) * * *
(i) * * *
(B) Not-for-profit and nonprofit institutions (defined in FAR
31.701);
* * * * *
124. The note at the end of Part 253 is amended to remove the entry
``253.303-1851 Automation Equipment Requirement''.
Appendix G to Chapter 2--[Amended]
125. Appendix G to Chapter 2 is amended in Part 1, Section G-101,
by revising paragraph (c) to read as follows:
G-101 Assignment and Use of a Number
* * * * *
(c) Activity address monitors are--
Army
Department of the Army, Attn: OSA(RDA)-PA, 5109 Leesburg Pike, Suite
916, Falls Church, VA 22041-3201
Navy *
Navy Accounting and Finance Center (NAFC-5511), Washington, DC
20376-5001
Marine Corps *
Headquarters, U.S. Marine Corps (Code LBP), Washington, DC 20380-
0001
Air Force
SAF/AQCO, 1060 Air Force Pentagon, Washington, DC 20330-1060
Defense Logistics Agency
Defense Logistics Agency, Acquisition Operations Team, 8725 John J.
Kingman Road Suit 2533, Fort Belvoir, VA 22060-6221
Other Defense Agencies
All other Defense agencies will forward requests for Appendix G
maintenance to the Department of the Army, OSA(RDA)-PA.
* The Navy and Marine Corps Activity Address Monitor for
assignment of two-character call/order serial numbers is: Office of
the Assistant Secretary of the Navy (RD&A), Room 536, Crystal Plaza
5, Washington, DC 20350-1000.
126. Appendix G to Chapter 2 is amended in Part 1, Section G-102,
by revising paragraph (b)(2) to read as follows:
G-102 Activity Address Number Data Base Maintenance
* * * * *
* * *
(2) Notify the executive editor, Defense Acquisition Regulations
System, OUSD(A&T)DP(DAR), 3062 Defense Pentagon, Washington, DC
20301-3062; and
* * * * *
127. Appendix G to Chapter 2 is amended by revising Parts 2, 7, 8,
9, 10, 11, 12, 13, and 14 to read as follows:
PART 2--ARMY ACTIVITY ADDRESS NUMBERS
DAAA03, B1 Pine Bluff Arsenal, Attn: SMCPB-PO, 10020 Kabrich
Circle, Pine Bluff, AR 71602-9500
DAAA08, B7 Rock Island Arsenal, Attn: SMCRI-CT, Rock Island, IL
61299-5000
DAAA09, BA U.S. Army Armament, Munitions, and Chemical Command,
Attn: AMSIO-ACS, Rock Island, IL 61299-6000
DAAA22, BV Watervliet Arsenal, Attn: SIOWV-PPA, Watervliet, NY
12189-4050
DAAA31, GJ McAlester Army Ammunition Plant, Attn: SMCMC-PC,
McAlester, OK 74501-5000
DAAA32, 0P Crane Army Ammunition Activity, Attn: SMCCN-CT, 300
Highway 361, Crane, IN 47522-5099
DAAB07, BG USA Communications-Electronics Command, C3I Acquisition
Center, Attn: AMSEL-ACSP-BM, Fort Monmouth, NJ 07703-5008
DAAB08, 2V USA Communications-Electronics Command, C3I Acquisition
Center, Attn: AMSEL-ACSB-C (Facility ADP Branch), Fort Monmouth, NJ
07703-5008
DAAB10, ZP USA CECOM C3I Acquisition Center, Attn: AMSEL-ACVF-A-AA
(Stop 42), Building 160, Warrenton, VA 22186-5172
DAAB11, D0 USA CECOM C3I Acquisition Center, Attn: AMSEL-AC-VHA-HB
Base OPS (Stop 42), Warrenton, VA 22186-5172
DAAB22, E7 Headquarters, 5th Signal Command, DCSLOG, Contract
Management Division, Attn: ASQE-LG-C, CMR 421, APO AE 09056-3104
DAAB23, E8 1st Signal Brigade, Unit #15271, Attn: ASQK-L-CO, APO AP
96205-0044
DAAB24, Joint Visual Information Activity, Attn: SAM-OPV-V, 601
North Fairfax Street, Rm 334, Alexandria, VA 22314-2007
DAAC01, BH Anniston Army Depot, Attn: SDSAN-DOC, Anniston, AL
36201-5003
DAAC02, 9X Lexington Blue Grass Army Depot, Procurement Office,
Attn: SIO-BG-PO, 2091 Kingston Highway, Richmond, KY 40475-5115
[[Page 34137]]
DAAC07, ZM Sierra Army Depot, Attn: SDSSI-CONT, Herlong, CA 96113-
5009,
DAAC67, ZN Letterkenny Army Depot, Attn: SDSLE-P, Chambersburg, PA
17201-4152
DAAC71, ZS Tobyhanna Army Depot, Attn: SKSTO-K, Tobyhanna, PA
18466-5100
DAAC79, D7 Red River Army Depot, Attn: SDSRR-P, Texarkana, TX
75507-5000
DAAC83, BJ Corpus Christi Army Depot, Attn: SDSCC-C, Corpus
Christi, TX 78419-6170
DAAC89, BK Tooele Army Depot, Attn: SDSTE-DCBO, Tooele, UT 84074-
0839
DAAD01, B5 USA Yuma Proving Ground, Directorate of Contracting,
Attn: ATEYP-CR, Yuma, AZ 85365-9106
DAAD05, BM USA Aberdeen Proving Ground, Support Activity, Attn:
STEAP-PR/M, Ryan Building, Aberdeen Proving Ground, MD 21005-5001
DAAD07, BN USA White Sands Missile Range, Directorate of
Contracting, Attn: STEWS-PR, White Sands, NM 88002-5201
DAAD09, BP USA Dugway Proving Ground, Directorate of Contracting,
Attn: STEDP-DOC, Dugway, UT 84022-0538
DAAE07, BR USA Tank-Automotive Command, Attn: AMSTRA-IDAS, Warren,
MI 48397-5000
DAAE20, DG Armament and Chemical Acquisition and Logistics Activity
(ACALA), Attn: Acquisition Center, Rock Island, IL 61299-6000
DAAE30, 2T U.S. Army Armament RD&E Center (ARDEC), Attn: SMCAR-PCM-
O, Building 9, Picatinny Arsenal, NJ 07806-5000
DAAG55, YU U.S. Army Research Office (ARO), Attn: AMXRO-PR, P.O.
Box 12211, Research Triangle Park, NC 27709-2211
DAAG99, ZY USA Program Manager-SANG, Attn: AMCPM-NGA, Unit 61304,
APO AE 09803-1304
DAAH01, CC USA Missile Command, Attn: AMSMI-AC, Redstone Arsenal,
AL 35898-5280
DAAH03, D8 USA Missile Command, Attn: AMSMI-AC, Redstone Arsenal,
AL 35898-5280
DAAJ02, D9 Aviation Applied Technology Directorate, U.S. Army
Aviation and Troop Command, Attn: AMSAT-R-TC, Building 401, Fort
Eustis, VA 23604-5577
DAAJ04, 0V USA Charles Melvin Price Support Center, Attn: SATAS-P,
Granite City, IL 62040-1801
DAAJ05, ZF USA Aviation and Troop Command, Attn: IAS21WG, Building
404, Fort Eustis, VA 23604-5577
DAAJ09, BS USA Aviation and Troop Command, Attn: AMSAT-A-AD, 4300
Goodfellow Boulevard, St. Louis, MO 63120-1798
DAAK01, BB USA Aviation and Troop Command, Attn: AMSAT-A-AD, 4300
Goodfellow Boulevard, St. Louis, MO 63120-1798
DAAK60, C5 Soldier Systems Command Acquisition Center, Attn: SATNC-
PP (Procurement Support Division), Natick, MA 01760-5011
DAAL01, 1Y U.S. Army Research Laboratory, Attn: AMSRL-OP-PR, 2800
Powder Mill Road, Adelphi, MD 20783-1145
DAAM01, ZU U.S. Army Chemical and Biological Defense Command, Attn:
AMSCB-PC, Building E4455, Aberdeen Proving Ground, MD 21010-5423
DAAM02, B2 Rocky Mountain Arsenal, Attn: AMXRM-PM, Building 111,
Commerce City, CO 80022-1748
DABT01, F6 U.S. Army Aviation Center, Contracting Office, Attn:
ATZQ-C, Building T-00116, Fort Rucker, AL 36362-5000
DABT02, 2A U.S. Army Chemical and Military Police Centers and Fort
McClellan, Attn: ATZN-DOC, Building 241-C, Transportation Road, Fo
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