Defense Federal Acquisition Regulation Supplement
TABLE OF CONTENTS
SUBPART 239.70--EXCHANGE OR SALE OF INFORMATION TECHNOLOGY (IT)
239.7000 Scope of subpart.
239.7001 Policy.
239.7002 Conditions for using exchange/sale.
239.7003 Procedures.
SUBPART 239.71--SECURITY AND PRIVACY FOR COMPUTER SYSTEMS
239.7100 Scope of subpart.
239.7101 General.
239.7102 Security against compromising emanations.
239.7102-1 General.
239.7102-2 Validation of TEMPEST compliance.
239.7102-3 Contract clause.
SUBPART 239.72--STANDARDS
239.7200 Scope of subpart.
239.7201 Reserved.
239.7202 Waivers.
SUBPART 239.73--ACQUISITION OF AUTOMATIC DATA PROCESSING EQUIPMENT BY DOD CONTRACTORS
239.7300 Scope of subpart.
239.7301 Applicability.
239.7302 Approvals and screening.
239.7303 Contractor documentation.
SUBPART 239.74--TELECOMMUNICATIONS SERVICES
239.7400 Scope.
239.7401 Definitions.
239.7402 Policy.
239.7403 Regulatory bodies.
239.7404 Foreign carriers.
239.7405 Multiyear contracting authority for telecommunications resources.
239.7406 Cost or pricing data and information other than cost or pricing data.
239.7407 Type of contract.
239.7407-1 General.
239.7407-2 Communication service authorizations (CSAs).
239.7408 Special construction.
239.7408-1 General.
239.7408-2 Applicability of construction labor standards for special construction.
239.7409 Special assembly.
239.7410 Cancellation and termination.
239.7411 Contract clauses.
SUBPART 239.75--APPROPRIATIONS ACT RESTRICTIONS
239.7500 Scope of subpart
239.7501 Major automated information systems restriction.
PART 239 ACQUISITION OF INFORMATION TECHNOLOGY
SUBPART 239.70--EXCHANGE OR SALE OF INFORMATION
TECHNOLOGY (IT)
239.7000 Scope of subpart.
This subpart contains unique DoD procedures for the exchange or sale of information technology using the exchange authority of the General Services Administration (GSA). This subpart only applies to items with an original acquisition cost of $1,000,000 or more.
239.7001 Policy.
Agencies should consider exchange/sale when replacing Government-owned information technology. Exchange/sale is a method of--
(a) Transferring the equipment to be replaced to--
(1) Another Government agency, with reimbursement (sale); or
(2) The supplier of the replacement information technology for a trade-in allowance (exchange).
(b) Applying the proceeds of sale or the exchange allowance toward the purchase of replacement information technology.
239.7002 Conditions for using exchange/sale.
(a) The requiring activity must make a written determination that--
(1) The trade-in allowance of the exchange or the proceeds of the sale will be applied to acquire the replacement information technology; and
(2) The exchange/sale transaction will foster the economic and efficient accomplishment of a continuing requirement.
(b) The replacement equipment must be information technology--
(1) Similar to the resource being sold or exchanged;
(2) Which will satisfy the continuing requirement currently met by the resource being replaced.
(a) Comply with--
(1) This Subpart;
(2) Subpart 217.70; and
(3) The Defense Automation Resources Management Manual.
(b) Solicit offers both on an exchange (trade-in for allowance) or no exchange (no trade-in) basis.
(c) Retain the option to exercise any exchange offer at the time of award.
(d) List and describe the information technology to be exchanged in the solicitation. At a minimum include--
(1) A brief description of each item;
(2) Name of manufacturer;
(3) Equipment type;
(4) Model number; and
(5) The condition code and explanation of the code.
(e) Allow sufficient time in the contracting schedule to permit screening within the Government of the information technology to be exchanged prior to contract award.
(f) Immediately upon receipt of offers, determine the highest exchange offer (if any) and use it to initiate screening under the Defense Automation Resources Management Manual.
(1) Send an SF 120, Report of Excess Personal Property, to the Defense Information Systems Agency, Chief Information Officer, Defense Automation Resources Management Program Division (ATTN: D03D, 701 South Coutrhouse Road, Arlington, VA 22204-2199. Prominently display the following note on the original and five copies of the SF 120:
Exchange/"Sale" Property
A written administrative determination has been (will
be) made to apply the exchange allowance or proceeds of
"sale" to the acquisition of similar items.
(2) Include the following additional information with the SF 120:
(i) The identity of the offeror of the exchange;
(ii) The type of replacement equipment;
(iii) The acquisition method for the replacement equipment;
(iv) The anticipated purchase price for the replacement equipment; and
(v) The name and telephone number of the contracting officer.
(g) Evaluate offers using the solicitation criteria, including consideration of any exchange allowance offers. Award can be made whether or not the replaced information technology is exchanged.
(h) Before a contract is awarded, consider the results of the screening. Do not make an exchange if another Government agency wants to acquire the replaced equipment.
(1) If another agency is going to acquire the replaced equipment, do not include the exchange allowance in the contract price.
(2) The actual sale price to the agency acquiring the replaced equipment will be the exchange allowance (if any) of the successful offeror.
(i) If no Government agency wants to acquire the replaced equipment, the contract price shall include the exchange allowance, if any.
(j) If no exchange allowance was offered by the successful contractor, see the Defense Automation Resources Management Manual for disposal instructions.
SUBPART 239.71--SECURITY AND PRIVACY FOR COMPUTER SYSTEMS
239.7100 Scope of subpart.
This subpart applies to all acquisitions for computer systems. It covers both security and Privacy Act considerations.
239.7101 General.
Security requirements are in addition to provisions concerning protection of privacy of individuals (see FAR Subpart 24.1).
239.7102 Security against compromising emanations.
(a) The National Security or Atomic Energy Acts, as amended, may require protection of information that is--
(1) Processed;
(2) Transmitted;
(3) Stored;
(4) Retrieved; or
(5) Displayed.
(b) When acquiring computer equipment to be used to process classified information, the contracting officer shall obtain from the requiring activity--
(1) A determination as to whether the equipment must provide protection against compromising emanations; and
(2) Identification of an established National TEMPEST standard (e.g., NACSEM 5100, NACSIM 5100A) or a standard used by other authority.
(c) When contracts will require the use of FIP resources involving classified data, programs, etc., the contracting officer shall obtain from the requiring activity--
(1) Advice to whether to require contractors performing these services to use equipment meeting the requirements in paragraph (a) of this subsection (as prescribed in the clause at 252.239-7000, Protection Against Compromising Emanations;
(2) Information concerning any requirement for marking of TEMPEST--certified equipment (especially if to be reused); and
(3) Information on how to validate TEMPEST equipment compliance with required standards.
239.7102-2 Validation of TEMPEST compliance.
Include requirements for validation of TEMPEST compliance in Section E (Inspection and Acceptance) of the contract.
.239.7102-3 Contract Clause.
When contracting for computer equipment or systems that are to be used to process classified information, use the clause at 252.239-7000, Protection Against Compromising Emanations.
239.7200 Scope of subpart.
This subpart contains guidance for implementing--
(a) Federal Information Processing Standards (FIPS); and
(b) Federal Telecommunications Standards (FED-STD).
(a) The Secretary of Commerce has delegated to the Secretary of Defense the authority to waive FIP standards, in accordance with procedures established by the Secretary of Commerce. The Secretary of Defense redelegated that waiver authority to the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C3I)). The ASD(C3I) has redelegated to the senior information technology official of each military department the authority to approve waivers to FIP standards that are applicable to military department requirements. Waivers to FIP standards that are applicable to the requirements of DoD components outside the military departments must be approved by the ASD(C3I).
(b) Contracting officers shall ensure that all applicable FIP standards are incorporated into solicitations, except for those FIP standards for which the requiring activity has obtained a waiver from the appropriate military department or DoD senior information technology official.
(c) As part of the Commerce Business Daily synopsis of a solicitation, contracting officers shall publish a notice of any determinations to waive any FIP standards that are applicable to the solicitation. If the waiver determination is made after the notice of the solicitation is published, the contracting officer shall amend the notice to announce the waiver determination.
SUBPART 239.73--ACQUISITION OF AUTOMATIC DATA PROCESSING
EQUIPMENT BY DOD CONTRACTORS
239.7300 Scope of subpart.
This subpart prescribes approval requirements for automatic data processing equipment (ADPE) purchased by contractors for use in performing DoD contracts.
(a) This subpart applies when the contractor purchases ADPE and title will pass to the Government.
(b) This subpart does not apply to ADPE acquired as a component of an end item.
239.7302 Approvals and screening.
(a) The requirements of this section highlight the redistribution requirements of the Defense Automation Resources Management Manual, and are in addition to those at FAR 45.302.
(b) If the contractor proposes acquiring ADPE subject to 239.7301 and the unit acquisition cost is $50,000 or more--
(1) The contracting officer shall require the contractor to submit, through the administrative contracting officer, the documentation in 239.7303.
(2) The administrative contracting officer--
(i) Submits a request for screening the requirement against the pool of Government-owned ADPE to determine if available excess equipment could satisfy the contractor's needs. The request should include the contractor's supporting documentation. The request is sent to--
Defense Information Systems Agency
Chief Information Officer
Defense Automation Resources Management Program Division
ATTN: D03D
701 S. Courthouse Road
Arlington, VA 22204-2199; or
(ii) Uses the Automation Resources Management System (ARMS) to screen on-line. System access may be requested from the Defense Information Systems Agency, Chief Information Officer, Defense Automation Resources Management Program (DARMP) Division. Customers may apply for an ARMS Account Number by calling the DARMP Help Desk at (703) 696-1904; DSN 426-1904, FAX (703) 696-1908; E-mail DARMP@NCR.DISA.MIL.
(iii) Documents the result of the System query.
(iv) Upon receipt of and based on screening results from DARIC, advises the contractor that excess ADPE--
(A) Is available pursuant to the Defense Automation Resources Management Manual; or
(B) Is not available and contractor may proceed with acquisition of the equipment.
(3) The contracting officer--
(i) Reviews the contractor's documentation;
(ii) Decides whether to authorize the acquisition; and
(iii) Advises--
(A) The contractor if authorization is not granted; and
(B) The administrative contracting officer if authorization is granted.
239.7303 Contractor documentation.
Contracting officers may tailor the documentation requirements in paragraphs (a) through (d) of this section.
(a) List of existing ADPE and an analysis of its use.
(1) List of each component identified by manufacturer, type, model number, location, date of installation, and how acquired (lease, purchase, Government-furnished). Identify those acquired specifically to perform a Government contract.
(2) Reliability and usage data on each component for the past 12 months.
(3) Identification of users supported by each component, including how much time each user requires the component and the related contract or task involved.
(b) List of new ADPE needed and reasons why it is needed.
(1) Estimates of the new equipment's useful life.
(2) List of tasks the new equipment is needed for and why, including estimated monthly usage for each major task or project.
(3) Anticipated software and telecommunications requirements.
(c) Selection of computer equipment.
(1) If the acquisition is competitive--
(i) List sources solicited and proposals received;
(ii) Show how the evaluation was performed;
(iii) Provide an explanation if the selected offer is not the lowest evaluated offer.
(2) If the acquisition is not competitive, state why.
(d) Cost.
State the ADPE cost.
SUBPART 239.74--TELECOMMUNICATIONS SERVICES
239.7400 Scope.
This subpart prescribes policy and procedures for acquisition of telecommunications services and maintenance of telecommunications security. Telecommunications services may also meet the definition of information technology.
239.7401 Definitions.
As used in this subpart--
(a) "Common carrier" means any entity engaged in the business of providing telecommunications services which are regulated by the Federal Communications Commission or other governmental body.
(b) "Foreign carrier" means any person, partnership, association, joint-stock company, trust, governmental body, or corporation not subject to regulation by a U.S. governmental regulatory body and not doing business as a citizen of the United States, providing telecommunications services outside the territorial limits of the United States.
(c) "Governmental regulatory body" means the Federal Communications Commission, any statewide regulatory body, or any body with less than statewide jurisdiction when operating under the State authority. The following are not "governmental regulatory bodies"--
(1) Regulatory bodies whose decisions are not subject to judicial appeal; and
(2) Regulatory bodies which regulate a company owned by the same entity which creates the regulatory body.
(d) "Noncommon carrier" means any entity other than a common carrier offering telecommunications facilities, services, or equipment for lease.
(e) "Security," "sensitive information," and "telecommunications systems" have the meaning given in the clause at 252.239-7016, Telecommunications Security Equipment, Devices, Techniques, and Services.
(f) "Telecommunications" means the transmission, emission, or reception of signals, signs, writing, images, sounds, or intelligence of any nature, by wire, cable, satellite, fiber optics, laser, radio, or any other electronic, electric, electromagnetic, or acoustically coupled means.
(g) "Telecommunications services" means the services acquired, whether by lease or contract, to meet the Government's telecommunications needs. The term includes the telecommunications facilities and equipment necessary to provide such services.
(a) Acquisition.
(1) DoD policy is to acquire telecommunications services from common and noncommon telecommunications carriers--
(i) On a competitive basis, except when acquisition using other than full and open competition is justified.
(ii) Recognizing the regulations, practices, and decisions of the Federal Communications Commission (FCC) and other governmental regulatory bodies on rates, cost principles, and accounting practices;
(iii) Making provision in telecommunications services contracts for adoption of--
(A) FCC approved practices; or
(B) The generally accepted practices of the industry on those issues concerning common carrier services where--
(1) The governmental regulatory body has not expressed itself;
(2) The governmental regulatory body has declined jurisdiction; or
(3) There is no governmental regulatory body to decide.
(2) DoD's unique consumer needs in both volume and technology require DoD to participate actively in the rule making process of cognizant governmental regulatory bodies. DoD also must work with the government regulatory bodies and common carriers to be sure that in those areas in which the FCC cannot or will not rule, sound regulatory practices are followed. DoD should make every effort to avoid the time and expense of litigation by full and fair disclosure of both the carrier's and the DoD's position in advance.
(3) If actions do not produce reasonable or lawful rates, or when there is a refusal to provide required services or file appropriate tariffs, DoD should litigate. All contracts with the regulatory bodies should be through counsel under department/agency and Defense Information Systems Agency procedures.
(b) Security.
(1) The contracting officer shall ensure, in accordance with agency procedures, that purchase requests identify--
(i) The nature and extent of information requiring security during telecommunications;
(ii) The requirement for the contractor to secure telecommunications systems;
(iii) The telecommunications security equipment, devices, techniques, or services with which the contractor's telecommunications security equipment, devices, techniques, or services must be interoperable; and
(iv) The approved telecommunications security equipment, devices, techniques, or services, such as found in the National Security Agency's Information Systems Security Products and Services Catalogue.
(2) Contractors and subcontractors shall provide all telecommunications security techniques or services required for performance of Government contracts.
(3) Except as provided in paragraph (b)(4) of this subsection, contractors and subcontractors shall normally provide all required telecommunications security equipment or devices as plant equipment in accordance with FAR Part 45. In some cases, such as for communications security (COMSEC) equipment designated as controlled cryptographic item (CCI), contractors or subcontractors must also meet ownership eligibility conditions.
(4) When the contractor or subcontractor does not meet ownership eligibility conditions, the head of the agency may authorize provision of the necessary facilities as Government-furnished property or acquisition as contractor-acquired property, as long as conditions of FAR 45.303 are met.
239.7403 Regulatory bodies.
The FCC and other governmental regulatory bodies publish rules and regulations on the operations of common carriers and prescribe accounting principles to use to establish rates.
(a) Frequently, foreign carriers are owned by the government of the country in which they operate. The foreign governments often prescribe the methods of doing business. In many countries, an international agreement with the host country sets guidelines for acquiring communication services. In some countries, a corporate subsidiary of a carrier not indigenous to the country (often a U.S. parent) is the sole source for telecommunications services.
(b) Contracts for telecommunications services in foreign countries should describe rates and practices in as much detail as possible. It is DoD policy not to pay discriminatory rates. DoD should pay a reasonable rate for telecommunications services or the rate charged the military of that country, whichever is less.
(c) Refer special problems with telecommunications acquisition in foreign countries to higher headquarters for resolution with appropriate State Department representatives.
239.7405 Multiyear contracting authority for telecommunications resources.
(a) The General Services Administration (GSA) has exclusive multiyear contracting authority for telecommunications resources. However, GSA may delegate this authority in certain instances (see
Federal Property Management Regulations (FPMR) 101-35.6).
(b) In accordance with FPMR 101-35.6, executive agencies may enter into multiyear contracts for telecommunications resources if--
(1) The agency notifies GSA prior to using GSA's multiyear contracting authority;
(2) The contract life, including options, does not exceed 10 years; and
(3) The agency complies with OMB budget and accounting procedures
relating to appropriated funds.
239.7406 Cost or pricing data and information other than cost or pricing data.
(a) Common carriers are not required to submit cost or pricing data before award of contracts for tariffed services. Rates or preliminary estimates quoted by a common carrier for tariffed telecommunications services are considered to be prices set by regulation within the provisions of 10 U.S.C. 2306a. This is true even if the tariff is set after execution of the contract.
(b) Rates or preliminary estimates quoted by a common carrier for nontariffed telecommunications services or by a noncommon carrier for any telecommunications service are not considered prices set by law or regulation.
(c) Contracting officers shall obtain sufficient information to determine that the prices are reasonable. For example, cost or pricing data, if required in accordance with FAR 15.403-4, or information other than cost or pricing data, if required in accordance with FAR 15.403-3, may be necessary to support the reasonableness of--
(1) Nontariffed services;
(2) Special rates and charges not included in a tariff, whether filed or to be filed;
(3) Special assembly rates and charges;
(4) Special construction and equipment charges;
(5) Contingent liabilities that are fixed at the outset of the service;
(6) Proposed cancellation and termination charges under the clause at 252.239-7007, Cancellation or Termination of Orders--Common Carriers, and reuse arrangements under the clause at 252.239-7008, Reuse Arrangements;
(7) Rates contained in voluntary tariffs filed by nondominant common carriers; or
(8) A tariff, whether filed or to be filed, for new services installed or developed primarily for Governm
239.7407-1 General.
In addition to acquisition methods described in the FAR, the method described in this section may be used to acquire telecommunications services.
239.7407-2 Communication service authorizations (CSAs).
Basic agreements (see FAR 16.702) are used widely in conjunction with communication service authorizations to facilitate award of telecommunications services.
(a) Use DD Form 428, Communication Service Authorization (CSA), or an electronic data processing substitute to award, modify, cancel, or terminate telecommunications services. The CSA shall--
(1) Refer to the basic agreement;
(2) Specify the types and quantities and equipment to be provided as well as the tariff (or other price if a tariff is not available) of those services and equipment;
(3) Specify the premises involved;
(4) Cite the address for billing;
(5) Identify the disbursing office; and
(6) Provide funding information.
(b) Before awarding a CSA, comply with the requirements in FAR and DFARS, e.g., for competition, reviews, approvals, and determinations and findings.
(c) Include an expiration date in each CSA.
(d) Modify CSAs to reflect any price increases.
239.7408 Special construction.
(a) "Special construction" normally involves a common carrier giving a special service or facility related to the performance of the basic telecommunications service requirements. This may include--
(1) Moving or relocating equipment;
(2) Providing temporary facilities;
(3) Expediting provision of facilities; or
(4) Providing specially constructed channel facilities to meet Government requirements.
(b) Use this subpart instead of FAR Part 36 for acquisition of "special construction."
(c) Special construction costs may be--
(1) A contingent liability for using telecommunications services for a shorter time than the minimum to reimburse the contractor for unamortized nonrecoverable costs. These costs are usually expressed in terms of a termination liability, as provided in the contract or by tariff;
(2) A onetime special construction charge;
(3) Recurring charges for constructed facilities;
(4) A minimum service charge;
(5) An expediting charge; or
(6) A move or relocation charge.
(d) When a common carrier submits a proposal or quotation which has special construction requirements, the contracting officer shall require a detailed special construction proposal. Analyze all special construction proposals to--
(1) Determine the adequacy of the proposed construction;
(2) Disclose excessive or duplicative construction; and
(3) When different forms of charge are possible, provide for the form of charge most advantageous to the Government.
(e) When possible, analyze and approve special construction charges before receiving the service. Impose a ceiling on the special construction costs before authorizing the contractor to proceed, if prior approval is not possible. Do not make final payment for special construction charges unless the charges are approved by the contracting officer.
239.7408-2 Applicability of construction labor standards for special construction.
(a) The construction labor standards in FAR 22.4 ordinarily do not apply to special construction. However, if the special construction includes construction (as defined in FAR 36.102) of a public building or public work, the construction labor standards may apply. Determine applicability under FAR 22.402.
(b) Each CSA or other type contract which is subject to construction labor standards under FAR 22.402 shall cite that fact.
(a) Special assembly is the designing, manufacturing, arranging, assembling, or wiring of equipment to provide telecommunications services that cannot be provided with general use equipment.
(b) Special assembly rates and charges shall be based on estimated costs. The contracting officer shall negotiate special assembly rates and charges before starting service whenever possible. When it is not possible to negotiate in advance, use provisional rates and charges subject to adjustment, until final rates and charges are negotiated. The CSAs authorizing the special assembly shall be modified to reflect negotiated final rates and charges.
239.7410 Cancellation and termination.
(a) (1) Cancellation is stopping a requirement after placing of an order but before service starts.
(2) Termination is stopping a requirement after placing an order and after service starts.
(b) Determine cancellation or termination charges under the provisions of the applicable tariff or agreement/contract.
(a) In addition to other appropriate FAR and DFARS clauses, use the following clauses in solicitations, contracts, and basic agreements for telecommunications services. Modify the clauses only if necessary to meet the requirements of a governmental regulatory agency--
(1) 252.239-7002, Access;
(2) 252.239-7003, Facilities and Services to be Furnished--Common Carriers;
(3) 252.239-7004, Orders for Facilities and Services--Common Carriers;
(4) 252.239-7005, Rates, Charges, and Services--Common Carriers;
(5) 252.239-7006, Tariff Information;
(6) 252.239-7007, Cancellation or Termination of Orders--Common Carriers;
(7) 252.239-7008, Reuse Arrangements;
(b) Use the following clauses in solicitations, contracts, and basic agreements for telecommunications services when the acquisition includes or may include special construction. Modify the clauses only if necessary to meet the requirements of a governmental regulatory agency--
(1) 252.239-7011, Special Construction and Equipment Charges; and
(2) 252.239-7012, Title to Telecommunication Facilities and Equipment.
(c) Use the following clauses in basic agreements for telecommunications services--
(1) 252.239-7013, Obligation of the Government;
(2) 252.239-7014, Term of Agreement, and insert the effective date of the agreement in paragraph (a) of the clause; and
(3) 252.239-7015, Continuation of Communications Service Authorizations, as appropriate, and insert in paragraph (a) of the clause, the name of the contracting office and the basic agreement or contract number which is being superseded.
(d) Use the clause at 252.239-7016, Telecommunications Security Equipment, Devices, Techniques, and Services, in solicitations and contracts when performance of a contract requires a securing telecommunications.
SUBPART 239.75--APPROPRIATIONS ACT RESTRICTIONS
239.7500 Scope of subpart.
This subpart contains restrictions on the acquisition of information technology, imposed by Defense appropriations acts.
239.7501 Major automated information systems restriction.
Section 8028 of the FY 1992 Defense Appropriations Act (Pub. L. 102-172) and similar sections of the FY 1993, FY 1994, and FY1995 Defense appropriations acts prohibit use of DoD appropriations for acquisition of major automated information systems, unless the systems have successfully completed oversight reviews required by DoD regulations.