DoD Issues Final Rule on Annual Representations and Certifications

September 20, 2011

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to conform it to higher-level changes in the Code of Federal Regulation relating to annual representations and certifications. Effective date: September 20, 2011. Reference Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011).

DFARS 204.1202 prescribes use of DFARS provision 252.204-7007, Alternate A, Annual Representations and Certifications, in contracts that also incorporate Federal Acquisition Regulation (FAR) provision 52.204-8, Annual Representations and Certifications. FAR 52.204-8 was changed to add a new paragraph (c), which lists the applicable representations and certifications in the Online Representations and Certifications Application (ORCA). This FAR change necessitated a similar modification of DFARS 252.204-7007. DoD published a proposed rule in the Federal Register at 75 FR 71646, on November 24, 2010, to update DFARS 204.1202 and 252.204-7007. The public comment period closed January 24, 2011. Two respondents submitted comments on the proposed rule. A discussion of the comments is provided below.

Discussion and Analysis
A. Applicability
Comment: A respondent recommended DFARS 252.212-7000, Offeror Representations and Certifications--Commercial Items, be retained in the list of representations and certification at 204.1202(2) that are not to be included in the solicitation when using the provision DFARS 252.204-7007, because that provision is to be used in non-commercial solicitations only. Another respondent recommended that DFARS 204.1202(2) include provisions that are applicable to solicitations, rather than those not applicable, similar to FAR 52.204-8.
Response: The first respondent is correct that DFARS provision 252.212-7000 is for commercial solicitations only and will not be included in solicitations that include DFARS 52.204-7007, because that provision is used when FAR 52.204-8 is included, and that FAR provision is not used in solicitations issued under FAR part 12 for acquisition of commercial items. However, inclusion of DFARS 252.212-7000 on the list at DFARS 204.1202(2) is not appropriate, because the list at DFARS 204.1202(2) should include only provisions that are listed in 252.204- 7007, Alternate A, Annual Representations and Certifications. Therefore, the final rule does not retain 252.212-7000 on the list at 204.1202(2). Further, DFARS 204.1202(2) introductory text was amended to clarify that the listed provisions will not be included separately in the solicitation, because the appropriate representations and certifications will be covered by inclusion of DFARS 252.204-7007 in the solicitation.

Comment: A respondent recommended the representations at DFARS 252.216-7003 and DFARS 252.239-7011 be retained in the list of representations and certifications at DFARS 252.204-7007 because the Contractor is asked to make a representation about itself.
Response: DFARS 252.216-7003 will be retained in the list. DFARS 252.239-7011, however, will not be included because the clause requires contractors to make certain representations during contract performance concerning reimbursement of special construction and equipment costs. According to DFARS 239.7408-1(a), ''special construction normally involves a common carrier giving a special service or facility related to the performance of the basic telecommunications service requirements.'' Since these are costs that occur during contract performance, the contractor would not be able to make a proper representation prior to award.

B. Clarification
Comment: A respondent recommended modifying the second sentence of DFARS 252.204.7007(e) by removing ''as indicated in (d) and (e) of this provision'' and adding ''as well as those in (d) above'' after ''posted electronically.''
Response: When using the alternate at DFARS 252.204-7007, paragraphs (d) and (e) replace paragraph (d) of FAR 52.204-8. DFARS 252.204-7007(e) provides that by submission of an offer, the offeror verifies that the FAR 52.204-8(c) representations and certifications and the DFARS 252.204-7007(d) representations and certifications are up to date in ORCA. Accordingly, the language in paragraph (e) was changed to include the statement ''as indicated in FAR 52.204-8(c) and paragraph (d) of this provision.''

Comment: A respondent commented that the second to last line of 252.204-7007(e) should say ''provision number'' instead of ''clause number.''
Response: The term ''clause number'' was changed to ''provision number'' in the second to last line of 252.204-7007(e) and in the first block of the table provided.

C. Additional Changes
DFARS 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country, which was inadvertently omitted from the listing of provisions, has been added to 204.1202(2)(i) and 252.204-7007(d)(1)(i). The Alternates for 252.225-7020, Trade Agreements Certificate, and 252.225-7035, Buy American Act-Free Trade Agreements-Balance of Payments Program Certificate, were added to 252.204-7007(d)(2)(iii), and (vi), respectively.    Additionally, to further clarify applicability of the various provisions, 252.204-7007(d) was reformatted into two sections to separately list the DFARS provisions that the contracting officer may individually select if one of the provisions applies for a particular procurement. Additionally, the prescription for use of 252.204-7007 was reformatted to include it as a lead in to the provision rather than being a part of the provision.

FOR FURTHER INFORMATION CONTACT: Mr. Julian Thrash, 703-602-0310. 






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