DoD Issues Five Final Rules Amending the DFARS

The Department of Defense has issued five final rules that amend the Defense Federal Acquisition Regulation Supplement. All but one of the rules have a June 28, 2019, effective date.

Only One Offer. The rule in DFARS Case 2017-D009 (84 FR 30947) partially implements section 822 of the National Defense Authorization Act for Fiscal Year 2017 (PL 114-328) to address the requirement for additional certification of cost or pricing data and potential submission of additional certified cost or pricing data when only one offer is received in response to a competitive solicitation. The rule, which amends DFARS 215.371-3, DFARS 215.408, and DFARS 252.215-7008, also makes prime contractors responsible for determining whether a subcontract qualifies for an exception from the requirement for submission of certified cost based on adequate price competition. This DFARS rule supplements the FAR Case 2017-006 rule, Exception from Certified Cost or Pricing Data Requirements—Adequate Price Competition (FAC 2019-03), which modified the standards for adequate price competition at FAR 15.403-1(c) for DoD, the National Aeronautics and Space Administration, and the Coast Guard. Section 822 provides that, for DoD, NASA, and the Coast Guard, adequate price competition requires a price that is based on adequate competition that results in at least two or more responsive and viable offers from independently competing offerors. The final DFARS rule does not make significant changes from the proposed rule. However, it revises DFARS 252.215-7010 to conform to changes in the FAR Case 2017-006 final rule relating to elimination of the terms “responsive” and “viable.” This rule goes into effect on July 31, 2019.

Representations and Certifications. The DFARS Case 2019-D030 (84 FR 30946) rule corrects paragraph references in the solicitation provision at DFARS 252.204-7007, Annual Representations and Certifications—Alternate A, and the prescription for the provision at DFARS 204.1202. FAR 52.204-8(b) includes a reference to paragraph (d) of that FAR provision. When the DFARS alternate was used, this reference to paragraph (d) created an inconsistency. To correct the inconsistency, this final rule amends DFARS 252.204-7007 to include an alternate to FAR 52.204-8(b) that references paragraph (e) of the DFARS alternate, instead of FAR 52.204-8(d). In addition, the rule restructures the prescription at DFARS 204.1202(1) so that the lead-in tying the prescription to the use of FAR 52.204-8 applies to both paragraphs (1) and (2), as originally intended.

Repealed Clauses and Provisions. Two of the final rules remove contract clauses and solicitation provisions from DFARS Part 247, Transportation, that are no longer needed. The DFARS Case 2019-D020 final rule (84 FR 30950) removes and reserves DFARS 252.247-7008 through DFARS 252.247-7011, DFARS 252.247-7013, and DFARS 252.247-17 through DFARS 252.247-7019, and makes corresponding changes to DFARS 252.247-7014, DFARS 252.247-7016, DFARS 252.247-7022, and the prescription for these clauses and provisions at DFARS 247.271-3. DoD subject matter experts in transportation services advised that the information contained in these provisions and clauses is specific to the requirement and within the contracting officer’s discretion. When applicable, the information more appropriately belongs in solicitation instructions or a performance work statement to ensure offerors and contractors receive a cohesive set of instructions and performance requirements. The DFARS Case 2018-D048 rule (84 FR 30952) removes DFARS 252.247-7001, Price Adjustment, and the associated clause prescription at DFARS 247.270-4. This clause was included in solicitations and contracts for stevedoring services when sealed bidding was used. However, other FAR and DFARS clauses can be used to provide the necessary information to contractors performing on stevedoring contracts. DoD issued this rule pursuant to a recommendation from the DoD Regulatory Reform Task Force. The rule also makes corresponding technical changes to DFARS 252.247-7002 and DFARS 252.247-7002.

Technical Amendments. Finally, one rule (84 FR 30953) makes a needed editorial change. The rule adds a new section, DFARS 249.109-70, Limitation on pricing of the terminated effort, which specifies that when there is a termination for convenience or a change that reduces scope, contracting officers are directed to follow the new procedures in the DFARS companion resource, Procedures, Guidance, and Information, at PGI 249.109-70.

About George Gullo

George Gullo is an attorney editor in the Government Contracts group at Wolters Kluwer Legal & Regulatory U.S. George serves as the principal editor of Cost Accounting Standards Guide and supports all of the group’s print and electronic publications, as well as legal research tools, including the Government Contracts Reporter, Board of Contract Appeals Decisions, and the FAR and DFARS Matrix Smart Charts. With more than 25 years experience in the legal publishing industry, including more than 15 years in the government contracts area, George also has a background in legal and business transactions. He is a graduate of DePaul University College of Law and a licensed Illinois attorney.
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