Since this is a DOD wide policy how can we justify to the contracting officer to comply with 245-105 if the current contracts do not have the clause (252.245.7003 & 252.242-7005) invoked....
As background, new clauses, or changes to existing Defense Federal Acquisition Regulation Supplement (DFARS) clauses, apply to new contracts and solicitations, as well as existing “legacy” contracts if the contract is modified to incorporate the new clause. However, Contracting Officers cannot apply business system criteria from the new rule if it conflicts with what is included in the underlying contract itself.
Based on the Interim Rule published in the Federal Register on May 18, 2011, Contracting Officers are required (as of that date, May 18, 2010) to determine the acceptability of the (contractor’s) system and approve or disapprove the system; and pursue correction of any deficiencies.
This policy requirement applies notwithstanding if the DFARS clause 252.245-7003 is contained within the contract. In other words, the Contracting Officer’s responsibilities are independent of whether the DFARS clause is in the contract. The difference lies in the criteria used by the Contracting Officer in arriving at the acceptability of the contractor’s system. In the case of DFARS clause 252.245-7003, the property management system criteria is that contained in the FAR clause 52.245-1 (see 252.245-7003, paragraph (c), System Criteria). This may not be true for the other business system clauses. However, for property management systems, the DFARS system criterion mirrors that of FAR requirements.
The business system criteria found in the Interim Rule published in the Federal Register on May 18, 2011, applies to all business system evaluations so long as they are consistent with the business system criteria contained in the contract. Note: the final rule was published on February 24, 2012—and contains the same criteria. If the contractor does not have contracts containing the new system specific clauses, the Contracting Officer must evaluate the audit/functional specialist report using the system criteria stated in the contractor's existing
In summary, although the 252.245-7003 clause may not be in the contract, the prescription or “policy” portion of the DFARS Interim Rule became effective and applies on the day of its publication—May 18, 2011.
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