The Department of Defense (DoD) issued three final rules amending the Defense Federal Acquisition Regulation Supplement (DFARS) on Friday, November 15th, 2024. Two of these rules have positive material impacts on small business offerors on competitive DoD solicitations and subcontractors under DoD prime contracts. A synopsis of each is provided below.
DFARS Case 2024 - D016, Past Performance of Affiliate Companies of Small Business Concerns (Final Rule) -- This rule amends DFARS Subpart 215.305 (under the authority of 41 U.S.C. 1303 and 48 CFR Chapter 1) to state under a new subparagraph (a)(2)(C) that for competitive solicitations, contracting officers shall consider relevant past performance provided for affiliates of offerors that are small business concerns.
This is great news for small businesses who can now use the past performance experience of their affiliates as part of their offer. However, caution should be taken and it is my personal suggestion that businesses disclose in their offer that the performance submitted is that of an affiliate and not claim it under their own name for full transparency and Contracting Officer info.
(Implements Section 865 of the National Defense Authorization Act (NDAA) of Fiscal Year (FY) 2024 (Pub. L. 118-31).)
Published: 11/15/2024 | Effective Date: 11/15/2024 (89 FR 90237)
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This rule modifies the list of provisions and clauses listed in DFARS Subpart 212.301 paragraph (f) which apply to DoD solicitations and contracts using FAR part 12 procures for the acquisition of commercial products and commercial services to--
Remove DFARS Clause 252.203-7003, Agency Office of the Inspector General
Remove DFARS Provision 252.215-7007, Notice of Intent to Resolicit
This rule also modifies the list of provisions and clauses listed in DFARS Subpart 212.370 which are not applicable to contracts and subcontracts for the acquisition of commercial products, commercial services, and commercially available off-the-shelf (COTS) items to ADD--
DFARS Clause 252.203-7003, Agency Office of the Inspector General
DFARS Provision 252.215-7007, Notice of Intent to Resolicit.
Similar clarifications are also made to the list of provisions and clauses in DFARS Subpart 212.371 which are not applicable to the acquisition of COTS items to ADD--
DFARS Clause 252.205-7000, Provision of Information to Cooperative Agreement Holders
DFARS Provision 252.204-7008, Compliance with Safeguarding Covered Defense Information Controls
DFARS clause 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting
DFARS provision 252.204-7019, Notice of NIST SP 800-171 DoD Assessment Requirements
DFARS clause 252.204-7020, NIST SP 800-171 DoD Assessment Requirements
DFARS clause 252.204-7021, Cybersecurity Maturity Model Certification Requirements.
Since publication of the proposed rule for this case, other final rules have been issued and the changes below were necessary to this final rule as a result.
DFARS Subpart 212.371 was revised to add the following clauses to the list of solicitation provisions and clauses that are inapplicable to contracts solely for the acquisition of COTS items:
DFARS Clause 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting
DFARS Clause 252.205-7000 Provision of Information to Cooperative Agreements Holders
DFARS Subpart 212.301 was revised to add DFARS Provision 252.203-7005, Representation Related to Compensation of Former DoD Officials, back to the list of provisions and clauses that apply to contracts for commercial products and commercial services.
(Implements Section 849 paragraphs (b) and (c) of the NDAA for FY 2018 (Pub. L. 115-91) and Section 837 of the NDAA for FY 2019 (Pub. L. 115-232).)
Published: 11/15/2024 | Effective Date: 11/25/2024 (89 FR 90233)
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DFARS Case 2024-D026, Updates to the Definition of Departments and Agencies (Final Rule) -- This direct rule amends the definition of "departments and agencies" at DFARS Subpart 202.101 to add recently established defense agencies. There is no contractor action as a result of this rule.
Published: 11/15/2024 | Effective Date: 11/15/2024 (89 FR 90238)
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