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  • Question

    Is there or what is the cutoff date for solicitations and contracts to have this updated clause added to them? Im trying to find where it might state that: "inclusion of this clause is only applicable to solicitations and contracts awarded on or after August 16, 2011."


    Answer

    1. The FAR and Federal Register references quoted below in pertinent part are applicable to this response.

    FAR 1.108 – FAR Conventions
    (d) Application of FAR changes to solicitations and contracts. Unless otherwise specified –
      (1) FAR changes apply to solicitations issued on or after the effective date of the change;
      (2) Contracting officers may, at their discretion, include the FAR changes in solicitations issued before the effective date, provided award of the resulting contract(s) occurs on or after the effective date; and
      (3) Contracting officers may, at their discretion, include the changes in any existing contract with appropriate consideration.

    FAR 43.103 -- Types of Contract Modifications
    (a) Bilateral. A bilateral modification (supplemental agreement) is a contract modification that is signed by the contractor and the contracting officer. Bilateral modifications are used to --
      (3) Reflect other agreements of the parties modifying the terms of contracts.


    Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations
    http://www.gpo.gov/fdsys/pkg/FR-2011-05-18/pdf/2011-11691.pdf

    Defense Federal Acquisition Regulation Supplement; Business Systems—Definition and Administration
    (DFARS Case 2009–D038)

    ACTION: Interim rule with request for comments.

    SUMMARY: DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to improve the effectiveness of DoD oversight of contractor business systems.

    DATES: Effective date: May 18, 2011.

    Applicability date: This rule applies to solicitations issued on or after May 18, 2011. Contracting officers are encouraged, to the extent feasible, to amend existing solicitations (including solicitations for delivery orders and task orders) in accordance with FAR 1.108(d), in order to include the clause at DFARS 252.242–7005, Contractor Business Systems, as applicable, in contracts (including delivery orders and task orders) to be awarded on or after May 18, 2011, and shall amend existing solicitations (including delivery orders and task orders) in accordance with FAR 1.108(d), in order to include the clause at DFARS 252.242–7005, Contractor Business Systems, as applicable, in contracts to be awarded on or after August 16, 2011.

    List of Subjects in 48 CFR Parts 215, 234, 242, 244, 245, and 252

    Therefore, 48 CFR parts 215, 234, 242, 244, 245, and 252 are amended as follows:

    18. Add section 252.242–7005 to read as follows:

    252.242–7005 Contractor Business Systems.
    As prescribed in 242.7001, use the following clause:
    CONTRACTOR BUSINESS SYSTEMS (MAY 2011)


    Federal Register /Vol. 77, No. 37 / Friday, February 24, 2012 /Rules and Regulations
    http://www.gpo.gov/fdsys/pkg/FR-2012-02-24/pdf/2012-4045.pdf

    Defense Federal Acquisition Regulation Supplement; Business Systems—Definition and Administration (DFARS Case 2009–D038)

    ACTION: Final rule.

    SUMMARY: DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to improve the effectiveness of DoD oversight of contractor business systems.

    DATES: Effective date: February 24, 2012.

    II. Discussion and Analysis
    A. Analysis of Public Comments
    23. Application to Existing Contracts
    [DoD] Response: Revisions to the DFARS set forth in this rule do not affect existing contracts that do not include the business systems clause unless the contractor and the Government agree to modify the contract bilaterally.

    List of Subjects in 48 CFR Parts 215, 232, 234, 242, 244, 245, and 252

    Accordingly, the interim rule amending 48 CFR parts 215, 234, 242, 244, 245, and 252, which was published in the Federal Register at 76 FR 28856 on May 18, 2011, is adopted as a final rule with the following changes:

    12. Amend section 252.242–7005 as follows:
      a. Remove the clause date ‘‘(MAY 2011)’’ and add ‘‘(FEB 2012)’’ in its place.


    2. As set forth in The Federal Register dated May 18, 2011 described above which issued the Interim Rule implementing clause DFARS 252.242–7005, pursuant to FAR 1.108(d)(1), the “May 2011” version of this clause was required to be included in all new solicitations issued on or after May 18, 2011 and in any existing solicitations that would result in a contract award on or after August 16, 2011. However, in accordance with FAR 1.108(d)(2), this Interim Rule also “encouraged” Contracting Officers to amend existing solicitations that would result in a contract award prior to August 16, 2011 to include this clause. Therefore, based on the information provided in this inquiry, it appears that the contracting activity could have negotiated this DFARS clause into the contract that was awarded in June 2011 in accordance with FAR 1.108(d)(2), but for some reason chose not to do so. Consequently in this case, the “cut-off” date for including this DFARS clause into the contract in question was the contract award date.

    3. As set forth in The Federal Register dated February 24, 2012 described above which issued the Final Rule implementing the “Feb 2012” version of clause DFARS 252.242–7005, this final rule and associated DFARS business systems clause does not apply to existing contracts that do not include this clause, which is the case here, unless the contractor and the Government agree to modify the contract bilaterally. Therefore, if the PCO now desires to add this clause to the contract, then pursuant to the final rule and FAR 43.103(a)(3), either the PCO or the ACO must negotiate a bilateral agreement with the contractor to change the contract terms to include this DFARS clause. This bilateral agreement can be “stand-alone” or included as part of another bilateral agreement. Additionally, because a bilateral agreement is needed to implement this added requirement on the contractor, the incorporation of this clause may or may not require an increase to the contract price depending upon the contractor’s position on this matter.


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