Defense Federal Acquisition Regulation Supplement; Use of FAR Part 12 for Performance-Based Contracting for Services

AGENCY:

Department of Defense (DoD).

ACTION:

Final rule.

SUMMARY:

DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove obsolete text pertaining to the use of FAR Part 12 (Acquisition of Commercial Items) procedures for performance-based contracting for services. The statutory authority upon which this text was based has expired.

EFFECTIVE DATE:

June 25, 2004.

FOR FURTHER INFORMATION CONTACT:

Ms. Teresa Brooks, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 2003-D111.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule removes DFARS 212.102 and 237.601, which implemented Section 821 of the National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106-398). Section 821 permitted DoD to treat certain performance-based service contracts and task orders as contracts for the procurement of commercial items. The authority provided by section 821 expired on October 30, 2003, and has been superseded by the authority provided in section 1431 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 1431 provides broader, governmentwide authority for the treatment of performance-based service contracts and task orders as contracts for the procurement of commercial items. An interim FAR rule implementing section 1431 was published in Federal Acquisition Circular 2001-24 on June 18, 2004 (69 FR 34226).

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

This rule will not have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2003-D111.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 212 and 237

• Government procurement

Therefore, 48 CFR parts 212 and 237 are amended as follows:

1. The authority citation for 48 CFR parts 212 and 237 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

PART 212—ACQUISITION OF COMMERCIAL ITEMS

Subpart 212.1—[Removed]

2. Subpart 212.1 is removed.

PART 237—SERVICE CONTRACTING

Subpart 237.6—[Removed]

3. Subpart 237.6 is removed.