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CFR Citation: 48 CFR Part 216

RIN ID: RIN 0750-AF90

NOTICE: RULES

ACTION: Defense Federal Acquisition Regulation Supplement:

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Defense Federal Acquisition Regulation Supplement; Limitations on DoD Non-Commercial Time-and-Materials Contracts DFARS Case 2007-D021

DATES: Effective Date: November 24, 2008.

DOCUMENT SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to address review and documentation requirements pertaining to the use of timeandmaterials contracts for the acquisition of noncommercial services. The rule provides for the same level of review for both commercial and non commercial DoD timeandmaterials contracts.

SUMMARY: Limitations on DoD Non-Commercial Time-and-Materials Contracts,

SUPPLEMENTAL INFORMATION

Section 16.601(d) of the Federal Acquisition Regulation (FAR) requires that, before using a timeandmaterials contract, the contracting officer must prepare a determination and findings that no other contract type is suitable. For timeandmaterials contracts for commercial services, FAR 12.207(b)(2) specifies the minimum content for the determination and findings, and FAR 12.207(c) contains additional requirements with regard to the use of indefinitedelivery contracts priced on a timeandmaterials basis.

To provide for the same level of oversight in the award of all DoD timeandmaterials contracts, this rule amends DFARS 216.601 to establish determination and findings requirements for DoD non commercial timeandmaterials contracts, similar to those required by FAR 12.207 for commercial services contracts.

DoD published a proposed rule at 73 FR 21891 on April 23, 2008. DoD received no comments on the proposed rule. Therefore, DoD has adopted the proposed rule as a final rule without change.

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

B. Regulatory Flexibility Act

DoD certifies that this final rule 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 the rule relates to internal DoD review and documentation requirements with regard to the selection of contract type. 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 216

Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR Part 216 is amended as follows:
PART 216TYPES OF CONTRACTS
1. The authority citation for 48 CFR Part 216 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
2. Section 216.601 is amended by adding paragraph (d) to read as follows:
216.601 Timeandmaterials contracts.
(d) Limitations.
(i) The determination and findings shall contain sufficient facts and rationale to justify that no other contract type is suitable. At a minimum, the determination and findings shall
(A) Include a description of the market research conducted; [[Page 70913]]
(B) Establish that it is not possible at the time of placing the contract or order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of certainty; (C) Establish that the requirement has been structured to minimize the use of timeandmaterials requirements (e.g., limiting the value or length of the timeandmaterials portion of the contract or order; establishing fixed prices for portions of the requirement); and (D) Describe the actions planned to minimize the use of timeand materials contracts on future acquisitions for the same requirements. (ii) For indefinitedelivery contracts, the contracting officer shall
(A) Structure contracts that authorize timeandmaterials orders to also authorize orders on a costreimbursement, incentive, or fixed price basis, to the maximum extent practicable; and
(B) Execute the determination and findings for
(1) Each order placed on a timeandmaterials basis if the indefinitedelivery contract also authorizes orders on a cost reimbursement, incentive, or fixedprice basis; or
(2) The basic contract if the indefinitedelivery contract only authorizes timeandmaterials orders. The determination and findings shall
(i) Contain sufficient facts and rationale to justify why orders on a costreimbursement, incentive, and fixedprice basis are not practicable; and
(ii) Be approved one level above the contracting officer. * * * * *
[FR Doc. E827780 Filed 112108; 8:45 am]
BILLING CODE 500108P

FOR FURTHER INFORMATION CONTACT Ms. Angie Sawyer, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 203013062. Telephone 7036028384; facsimile 7036027887. Please cite DFARS Case 2007D021.