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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: March 23, 2005

SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Restrictions on Totally Enclosed Lifeboat Survival Systems

SOURCE: Federal Register, March 23, 2005, Vol. 70, No. 55, page 14628

AGENCIES: Department of Defense (DOD)

ACTION: Proposed Rule

SYNOPSIS: This proposed rule would remove DFARS 225.7008, Restrictions on Totally Enclosed Lifeboat Survival Systems, and DFARS 252.225-7039, Restrictions on Totally Enclosed Lifeboat Survival Systems, because they are no longer considered applicable.

DATES: Comments on the proposed rule should be submitted on or before May 23, 2005.

ADDRESSES: Respondents may submit comments directly on the Federal eRulemaking Portal at http://www.regulations.gov; on the web site at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm; by e-mail to: dfars@acq.osd.mil; by fax to 703-602-0350; by mail to Defense Acquisition Regulations Council, Attn: Amy Williams, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; or by courier/hand to Defense Acquisition Regulations Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402. Cite "DFARS Case 2004-D034" when making comments on this proposed rule.

FOR FURTHER INFORMATION CONTACT: Amy Williams, 703-602-0328.

SUPPLEMENTARY INFORMATION: This proposed rule would remove DFARS 225.7008 (consisting of DFARS 225.7008-1, Restrictions, DFARS 225.7008-2, Exceptions, DFARS 225.7008-3, Waiver, and DFARS 225.7008-4, Contract Clause), and the corresponding contract clause at DFARS 252.225-7039. These implement provisions of the Fiscal Year 1994 DOD Appropriations Act (Public Law 103-139), the Fiscal Year 1995 DOD Appropriations Act (Public Law 103-335), and 10 U.S. Code (U.S.C.) 2534. Both appropriations acts state that none of the funds appropriated in “this or any other Act” could be used for the purchase of a totally enclosed lifeboat and associated davits and winches if less than 50% of the entire system's components are manufactured in the United States, and if less than 50% of the labor in the manufacture and assembly of the entire system is performed in the United States.

It is presumed that any provision in an annual appropriations act is effective only for that fiscal year, unless permanency is clearly indicated by words of futurity, or the provision is of a general nature and has no relation to the object of the appropriations. At the time of implementation of the restrictions on totally enclosed lifeboat systems in the DFARS, DOD interpreted the phrase “this or any other Act” to indicate futurity to the restrictions. However, DOD has reevaluated this interpretation and determined that the 1994 and 1995 appropriations act provisions were not permanent legislation. This position is supported by case law, including a U.S. Comptroller General decision of September 16, 1987, B-228838, which held that language such as “this or any other Act” does not indicate futurity.

10 U.S.C. 2534(a) restricts the acquisition of totally enclosed lifeboats that are components of naval vessels. Since this restriction affects only the Navy, and 10 U.S.C. 2534(h) specifies that DOD may not use contract clauses or certifications to implement this restriction, but must use management and oversight techniques, DFARS implementation of this restriction is considered unnecessary.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953.

Copyright 2005 by Panoptic Enterprises. All Rights Reserved.

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