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Federal Register / Vol. 72, No.

148 / Thursday, August 2, 2007 / Rules and Regulations 42313

(1) The name, address, telephone • Section 204.7005. Updates the U.S. Army Tank-Automotive and
number, and facsimile telephone Internet address for DoD order code Armaments Command
number of the person submitting the assignment listings, and updates the * * * * *
instrument by facsimile; office symbol for the Air Force order
(2) The number of pages submitted by code monitor. PART 204—ADMINISTRATIVE
facsimile; and MATTERS
List of Subjects in 48 CFR Parts 202 and
(3) The name of the vessel, official
204 § 204.7005 [Amended]
number or hull identification number of
the vessel(s), and the name(s) of the Government procurement. ■ 3. Section 204.7005 is amended as
owner(s) of the vessel(s) to which the Michele P. Peterson,
follows:
instrument relates. ■ a. In paragraph (c), by removing ‘‘Air
Editor, Defense Acquisition Regulations
(d) The filing of any instrument System.
Force: SAF/AQCX’’ and adding in its
submitted by facsimile is terminated place ‘‘Air Force: SAF/AQCI’’; and
and the instrument will be returned to ■ Therefore, 48 CFR Parts 202 and 204 ■ b. In paragraph (d) by removing
the submitter if the instrument is subject are amended as follows: ‘‘http://www.acq.osd.mil/dpap/dfars/
to termination for any cause under ordercode.htm’’ and adding in its place
PART 202—DEFINITIONS OF WORDS
§ 67.217(a). ‘‘http://www.acq.osd.mil/dpap/dars/
AND TERMS
ordercodes/index.htm’’.
§ 67.540 [Removed]
■ 1. The authority citation for 48 CFR [FR Doc. E7–14897 Filed 8–1–07; 8:45 am]
■ 5. Remove § 67.540. Parts 202 and 204 continues to read as BILLING CODE 5001–08–P
follows:
§ 67.550 [Amended]
Authority: 41 U.S.C. 421 and 48 CFR
■ 6. Amend § 67.550 by removing from Chapter 1. DEPARTMENT OF DEFENSE
Table 67.550–Fees, the entry reading:
‘‘Facsimile submission handling ■ 2. Section 202.101 is amended in the Defense Acquisition Regulations
Subpart O 2.00 1.’’ definition of ‘‘Contracting activity’’ as System
Dated: July 26, 2007. follows:
■ a. By revising the list with the heading 48 CFR Parts 202, 210, 213, 215, and
J.G. Lantz,
‘‘ARMY’’; and 219
Acting Assistant Commandant For ■ b. Under the heading ‘‘DEFENSE
Prevention, U.S. Coast Guard. RIN 0750–AF36
LOGISTICS AGENCY’’, by removing
[FR Doc. E7–14938 Filed 8–1–07; 8:45 am] ‘‘Office of the Deputy Director, Logistics
BILLING CODE 4910–15–P Defense Federal Acquisition
Operations’’ and adding in its place
Regulation Supplement; Limitations on
‘‘Acquisition Management Directorate’’.
Tiered Evaluation of Offers (DFARS
The revised list reads as follows:
DEPARTMENT OF DEFENSE Case 2006–D009)
202.101 Definitions.
AGENCY: Defense Acquisition
Defense Acquisition Regulations * * * * * Regulations System, Department of
System
Army Defense (DoD).
48 CFR Parts 202 and 204 ACTION: Final rule.
Headquarters, U.S. Army Contracting
Agency Joint Contracting Command— SUMMARY: DoD has adopted as final,
Defense Federal Acquisition Iraq/Afghanistan
Regulation Supplement; Technical with changes, an interim rule amending
National Guard Bureau the Defense Federal Acquisition
Amendments Program Executive Office for Regulation Supplement (DFARS) to
AGENCY: Defense Acquisition Simulation, Training, and implement Section 816 of the National
Regulations System, Department of Instrumentation Defense Authorization Act for Fiscal
Defense (DoD). U.S. Army Aviation and Missile Year 2006. Section 816 requires DoD to
Command prescribe guidance on the use of tiered
ACTION: Final rule.
U.S. Army Communications-Electronics evaluation of offers for contracts and for
SUMMARY: DoD is making technical Command task or delivery orders under contracts.
amendments to the Defense Federal U.S. Army Corps of Engineers
DATES: Effective Date: August 2, 2007.
Acquisition Regulation Supplement U.S. Army Intelligence and Security
Command FOR FURTHER INFORMATION CONTACT: Ms.
(DFARS) to update organization names,
U.S. Army Joint Munitions and Deborah Tronic, Defense Acquisition
office symbols, and an Internet address.
Lethality Life Cycle Management Regulations System,
DATES: Effective Date: August 2, 2007. OUSD(AT&L)DPAP(DARS), IMD 3C132,
Command
FOR FURTHER INFORMATION CONTACT: Ms. U.S. Army Materiel Command, Office of 3062 Defense Pentagon, Washington, DC
Michele Peterson, Defense Acquisition Command Contracting 20301–3062. Telephone (703) 602–0289;
Regulations System, U.S. Army Medical Command facsimile (703) 602–7887. Please cite
OUSD(AT&L)DPAP(DARS), IMD 3C132, U.S. Army Medical Research and DFARS Case 2006–D009.
3062 Defense Pentagon, Washington, DC Materiel Command SUPPLEMENTARY INFORMATION:
20301–3062. Telephone (703) 602–0311; U.S. Army Military Surface Deployment
facsimile (703) 602–7887. and Distribution Command A. Background
SUPPLEMENTARY INFORMATION: This final U.S. Army Research, Development, and DoD published an interim rule at 71
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rule amends DFARS text as follows: Engineering Command FR 53042 on September 8, 2006, to
• Section 202.101. Updates the lists U.S. Army Space and Missile Defense implement Section 816 of the National
of Army and Defense Logistics Agency Command Defense Authorization Act for Fiscal
contracting activities. U.S. Army Sustainment Command Year 2006 (Pub. L. 109–163). Section

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42314 Federal Register / Vol. 72, No. 148 / Thursday, August 2, 2007 / Rules and Regulations

816 requires DoD to prescribe guidance requirements for conducting market This rule was not subject to Office of
on the use of tiered evaluation of offers research, should be deleted. Although Management and Budget review under
for contracts and for task or delivery the phrase is consistent with the FAR, Executive Order 12866, dated
orders under contracts. The guidance it is not in the statute being September 30, 1993.
must include a prohibition on the use of implemented and creates ambiguity.
DoD Response: The text at DFARS B. Regulatory Flexibility Act
tiered evaluation of offers unless the
contracting officer (1) has conducted 210.001 is consistent with both the DoD certifies that this final rule will
market research in accordance with Part statute and FAR Part 10. The statute not have a significant economic impact
10 of the Federal Acquisition Regulation prohibits the use of tiered evaluation of on a substantial number of small entities
(FAR); (2) is unable, after conducting offers unless, among other things, the within the meaning of the Regulatory
market research, to determine whether contracting officer has conducted Flexibility Act, 5 U.S.C. 601, et seq.,
or not a sufficient number of qualified market research in accordance with Part because the rule relates to market
small businesses are available to justify 10 of the FAR. The implementing research and documentation
limiting competition for the contract or DFARS language reflects the policy in requirements performed by the
order; and (3) includes in the contract FAR Part 10, requiring the conduct of Government.
file a written explanation of why the market research ‘‘appropriate to the C. Paperwork Reduction Act
contracting officer was unable to make circumstances.’’ The DFARS language
the determination. recognizes that there are many ways to The Paperwork Reduction Act does
Four sources submitted comments on conduct market research, and that the not apply, because the rule does not
the interim rule. A discussion of the methods employed should be those that impose any information collection
comments is provided below. In will be effective for the particular requirements that require the approval
addition to the changes addressed in the acquisition. of the Office of Management and Budget
DoD response to Comment 1, the final 5. Comment: The rule states that the under 44 U.S.C. 3501, et seq.
rule revises section 213.106–1–70 to tiered evaluation of offers order of List of Subjects in 48 CFR Parts 202,
provide a cross-reference to section precedence shall be consistent with 210, 213, 215, and 219
215.203–70, instead of duplicating the FAR Part 19. However, FAR Part 19
text found in that section. does not provide an ‘‘order of Government procurement.
1. Comment: The rule failed to precedence’’ among the various small Michele P. Peterson,
include an explicit prohibition. business goals. Editor, Defense Acquisition Regulations
DoD Response: While DoD believes DoD Response: FAR Part 19 does not System.
that stating the actions that the specifically state an order of
■ Accordingly, the interim rule
contracting officer must take before precedence. However, it does provide
amending 48 CFR parts 202, 210, 213,
using tiered evaluation is an implied direction on the circumstances under
215, and 219, which was published at
prohibition, the final rule contains which acquisitions may or must be set
71 FR 53042 on September 8, 2006, is
amendments at 215.203–70 to explicitly aside for various categories of small
adopted as a final rule with the
prohibit the contracting officer from businesses. For example, FAR 19.1305
following changes:
using tiered evaluation unless those states that the contracting officer must ■ 1. The authority citation for 48 CFR
actions have been taken. consider HUBZone set-asides for parts 202, 210, 213, 215, and 219
2. Comment: Defining the technique acquisitions at a certain dollar level continues to read as follows:
of tiered evaluation in the DFARS before considering small business set-
legitimizes the use of tiered evaluation. asides. DoD believes that, in Authority: 41 U.S.C. 421 and 48 CFR
DoD Response: The statute does not Chapter 1.
establishing an order of precedence in a
completely prohibit the use of tiered tiered evaluation of offers, that order of PART 213—SIMPLIFIED ACQUISITION
evaluation; it requires that certain precedence must be consistent with the PROCEDURES
actions be taken before this technique direction in FAR Part 19.
may be used. To permit an 6. Comment: Guidance to the ■ 2. Section 213.106–1–70 is revised to
understanding of the statutory contracting officer can be addressed in read as follows:
requirements, the technique must first the Procedures, Guidance, and
be defined. Information (PGI), consistent with the 213.106–1–70 Soliciting competition—
3. Comment: FAR Part 10 already law. tiered evaluation of offers.
requires the market research required by DoD Response: PGI guidance to See limitations on the use of tiered
the statute, and no additional research supplement this rule is considered evaluation of offers at 215.203–70.
is necessary. unnecessary at this time.
DoD Response: DoD agrees that the 7. Comment: The rule should include PART 215—CONTRACTING BY
FAR already requires agencies to coverage stating that a large business NEGOTIATION
conduct market research appropriate to involved in an 8(a) mentor-protege ■ 3. Section 215.203–70 is amended by
the circumstances before soliciting agreement shall not offer itself as a large revising paragraph (c) introductory text,
offers for acquisitions in excess of the business in competition against the 8(a) paragraph (c)(1) introductory text, and
simplified acquisition threshold and, mentor-protege agreement. In a recent paragraph (c)(2) to read as follows:
when necessary and cost-effective, cascading set-aside, a large business
below the simplified acquisition offered itself as a large entity, as a 215.203–70 Requests for proposals—
threshold. However, DoD believes the subcontractor to a small business, and tiered evaluation of offers.
additional language in DFARS Part 210 as a mentor in an 8(a) mentor-protege * * * * *
is appropriate to reinforce the statutory joint venture. (c) The contracting officer is
requirement for market research before DoD Response: The issue of a mentor prohibited from issuing a solicitation
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conducting a tiered evaluation of offers. firm competing against a protege firm is with a tiered evaluation of offers
4. Comment: The phrase ‘‘appropriate not specific to tiered evaluation of unless—
to the circumstances’’ at DFARS offers. Therefore, the final rule contains (1) The contracting officer conducts
210.001(a)(i), with regard to no change relating to this comment. market research, in accordance with

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Federal Register / Vol. 72, No. 148 / Thursday, August 2, 2007 / Rules and Regulations 42315

FAR Part 10 and Part 210, to yarn, or fabric items, when DoD has of the Office of Management and Budget
determine— determined that adequate domestic under 44 U.S.C. 3501, et seq.
* * * * * items are not available; or (2) chemical
List of Subjects in 48 CFR Parts 205 and
(2) If the contracting officer cannot warfare protective clothing, when an
225
determine whether the criteria in exception to domestic source
paragraph (c)(1) of this section are met, requirements applies because the Government procurement.
the contracting officer includes a acquisition furthers an agreement with a
Michele P. Peterson,
written explanation in the contract file qualifying country.
One source submitted comments on Editor, Defense Acquisition Regulations
as to why such a determination could System.
not be made (Section 816 of Public Law the interim rule, as discussed below.
109–163). Comments: The respondent strongly Interim Rule Adopted as Final Without
supported the initiative to insert Change
[FR Doc. E7–14906 Filed 8–1–07; 8:45 am]
transparency into the process of waiving
BILLING CODE 5001–08–P
domestic source requirements. Although ■ Accordingly, the interim rule
the law allows posting within 7 days amending 48 CFR Parts 205 and 225,
after contract award, the respondent which was published at 71 FR 58536 on
DEPARTMENT OF DEFENSE October 4, 2006, is adopted as a final
encouraged a more immediate notice to
Defense Acquisition Regulations industry, preferably before contract rule without change.
System award. The respondent also suggested [FR Doc. E7–14904 Filed 8–1–07; 8:45 am]
that there should be a permanent BILLING CODE 5001–08–P
48 CFR Parts 205 and 225 posting of current domestic
nonavailability determinations, so that
RIN 0750–AF33 DEPARTMENT OF DEFENSE
industry (especially a company just
Defense Federal Acquisition entering the contracting arena) would
have information regarding the Defense Acquisition Regulations
Regulation Supplement; Berry System
Amendment Notification Requirement materials or components for which a
(DFARS Case 2006–D006) waiver has been granted. The
respondent recommended that this 48 CFR Parts 225 and 252
AGENCY: Defense Acquisition information be available in an easily
Regulations System, Department of accessible and permanent location to RIN 0750–AF54
Defense (DoD). permit better compliance with domestic
source requirements. Defense Federal Acquisition
ACTION: Final rule.
Regulation Supplement; Berry
DoD Response: When drafting the
SUMMARY: DoD has adopted as final, Amendment Restrictions—Clothing
interim rule, DoD determined that the
without change, an interim rule Materials and Components Covered
least burdensome approach for posting
amending the Defense Federal (DFARS Case 2006–D031)
the notice would be to make it part of
Acquisition Regulation Supplement the synopsis that is published after
(DFARS) to implement Section 833(a) of AGENCY: Defense Acquisition
contract award in accordance with FAR Regulations System, Department of
the National Defense Authorization Act 5.301. Therefore, the final rule
for Fiscal Year 2006. Section 833(a) Defense (DoD).
continues to provide for posting of the
requires the posting of a notice on the notice within 7 days after contract ACTION: Final rule.
FedBizOpps Internet site, when certain award, consistent with the statutory
exceptions to domestic source provisions. A listing of current domestic SUMMARY: DoD has adopted as final,
requirements apply to an acquisition. nonavailability determinations is without change, an interim rule
DATES: Effective Date: August 2, 2007. available on the Defense Procurement amending the Defense Federal
FOR FURTHER INFORMATION CONTACT: Ms. and Acquisition Policy Web site, at Acquisition Regulation Supplement
Amy Williams, Defense Acquisition http://www.acq.osd.mil/dpap/paic/ (DFARS) to implement Section 833(b) of
Regulations System, dnad.htm. the National Defense Authorization Act
OUSD(AT&L)DPAP(DARS), IMD 3C132, This rule was not subject to Office of for Fiscal Year 2006. Section 833(b)
3062 Defense Pentagon, Washington, DC Management and Budget review under expands the foreign source restrictions
20301–3062. Telephone (703) 602–0328; Executive Order 12866, dated applicable to the acquisition of clothing
facsimile (703) 602–7887. Please cite September 30, 1993. to also include clothing materials and
DFARS Case 2006–D006. components, other than sensors,
B. Regulatory Flexibility Act electronics, or other items added to, and
SUPPLEMENTARY INFORMATION:
DoD certifies that this final rule will not normally associated with, clothing
A. Background not have a significant economic impact and the materials and components
DoD published an interim rule at 71 on a substantial number of small entities thereof.
FR 58536 on October 4, 2006, to within the meaning of the Regulatory DATES: Effective Date: August 2, 2007.
implement Section 833(a) of the Flexibility Act, 5 U.S.C. 601, et seq.,
National Defense Authorization Act for because the rule relates to a notification FOR FURTHER INFORMATION CONTACT: Ms.
Fiscal Year 2006 (Pub. L. 109–163). requirement that is performed by the Amy Williams, Defense Acquisition
Section 833(a) amended 10 U.S.C. 2533a Government. Regulations System,
to add a requirement for the posting of OUSD(AT&L)DPAP(DARS), IMD 3C132,
C. Paperwork Reduction Act 3062 Defense Pentagon, Washington, DC
a notice on the FedBizOpps Internet
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site, within 7 days after award of a The Paperwork Reduction Act does 20301–3062. Telephone (703) 602–0328;
contract exceeding the simplified not apply, because the rule does not facsimile (703) 602–7887. Please cite
acquisition threshold, for the impose any information collection DFARS Case 2006–D031.
acquisition of (1) certain clothing, fiber, requirements that require the approval SUPPLEMENTARY INFORMATION:

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