[Federal Register Volume 67, Number 81 (Friday, April 26, 2002)]
[Proposed Rules]
[Pages 20713-20714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10093]
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DEPARTMENT OF DEFENSE
48 CFR Part 225
[DFARS Case 2002-D005]
Defense Federal Acquisition Regulation Supplement; Foreign
Military Sales Customer Involvement
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to add policy regarding the participation
of foreign military sales (FMS) customers in the development of
contracts that DoD awards on their behalf. The objective is to provide
FMS customers with more visibility into the contract pricing and award
process.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before June 25, 2002, to be considered in
the formation of the final rule.
ADDRESSES: Respondents may submit comments directly on the World Wide
Web at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an
alternative, respondents may e-mail comments to: [email protected].
Please cite DFARS Case 2002-D005 in the subject line of e-mailed
comments.
Respondents that cannot submit comments using either of the above
methods may submit comments to: Defense Acquisition Regulations
Council, Attn: Ms. Amy Williams, OUSD(AT&L)DP(DAR), IMD 3C132, 3062
Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350.
Please cite DFARS Case 2002-D005.
At the end of the comment period, interested parties may view
public comments on the World Wide Web at http://emissary.acq.osd.mil/dar/dfars.nsf.
[[Page 20714]]
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
FMS customers have requested more visibility into the preparation
and pricing of contracts that DoD awards on their behalf. This proposed
rule revises DFARS 225.7304 to provide for greater involvement of FMS
customers in the contract award process, while protecting against
unauthorized disclosure of contractor proprietary data.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
The proposed 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 the
involvement of FMS customers in contract development should have no
significant effect on offerors or contractors. The rule provides for
the protection of contractor proprietary data. Therefore, DoD has not
performed an initial regulatory flexibility analysis. DoD invites
comments from small businesses and other interested parties. DoD also
will consider comments from small entities concerning the affected
DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be
submitted separately and should cite DFARS Case 2002-D005.
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 Part 225
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, DoD proposes to amend 48 CFR Part 225 as follows:
1. The authority citation for 48 CFR Part 225 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
2. Section 225.7304 is revised to read as follows:
225.7304 FMS customer involvement.
(a) FMS customers may request that a defense article or defense
service be obtained from a particular contractor. In such cases, FAR
6.302-4 provides authority to contract without full and open
competition. The FMS customer may also request that a subcontract be
placed with a particular firm. The contracting officer shall honor such
requests from the FMS customer only if the LOA or other written
direction sufficiently fulfills the requirements of FAR subpart 6.3.
(b) FMS customers should be encouraged to participate with U.S.
Government acquisition personnel in discussions with industry to--
(1) Develop technical specifications;
(2) Establish delivery schedules;
(3) Identify any special warranty provisions or other requirements
unique to the FMS customer; and
(4) Review prices on varying alternatives, quantities, and options
needed to make price-performance tradeoffs.
(c) Do not disclose to the FMS customer any data, including cost or
pricing data, that is contractor proprietary unless the contractor
authorizes its release.
(d) Except as provided in paragraph (e)(3) of this section, the
degree of FMS customer participation in contract negotiations is left
to the discretion of the contracting officer. Factors that may limit
FMS customer participation include situations where--
(1) The contract includes requirements for more than one FMS
customer;
(2) The contract includes unique U.S. requirements; or
(3) Contractor proprietary data is a subject of negotiations.
(e) Do not allow representatives of the FMS customer to--
(1) Direct the exclusion of certain firms from the solicitation
process (They may suggest the inclusion of certain firms);
(2) Interfere with a contractor's placement of subcontracts; or
(3) Observe or participate in negotiations between the U.S.
Government and the contractor involving cost or pricing data, unless a
deviation is granted in accordance with subpart 201.4.
(f) Do not accept directions from the FMS customer on source
selection decisions or contract terms (except that, upon timely notice,
the contracting officer may attempt to obtain any special contract
provisions, warranties, or other unique requirements requested by the
FMS customer).
(g) Do not honor any requests by the FMS customer to reject any bid
or proposal.
(h) If an FMS customer requests additional information concerning
FMS contract prices, the contracting officer shall, after consultation
with the contractor, provide sufficient information to demonstrate the
reasonableness of the price and reasonable responses to relevant
questions concerning contract price. This information--
(1) May include tailored responses, top-level pricing summaries,
historical prices, or an explanation of any significant differences
between the actual contract price and the estimated contract price
included in the initial LOA; and
(2) May be provided orally, in writing, or by any other method
acceptable to the contracting officer.
[FR Doc. 02-10093 Filed 4-25-02; 8:45 am]
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