II. Discussion and Analysis

DoD received comments from 21 respondents in response to the proposed rule. Some respondents expressed general support for the rulemaking. Others expressed concern that the rule did not achieve the overall objectives of section 207, either because the proposed coverage was too stringent or not sufficiently strong. Based on public comments, changes were made to the proposed rule, including the following:

Removing from the DFARS final rule the proposed changes that would have provided general regulatory coverage on OCIs to temporarily replace that in FAR subpart 9.5.

Locating the core of the final rule in subpart 209.5 and 252.209.

Making clear that this final rule takes precedence over FAR subpart 9.5, to the extent that there are inconsistencies.

Adding to the policy an explanation of the basic goals to promote competition and preserve DoD access to the expertise of qualified contractors.

Tightening the exception for "domain experience and expertise" to require a head of the contracting activity determination that DoD needs access to the domain experience and expertise of the apparently successful offeror; and that, based on the agreed-to resolution strategy, the apparently successful offeror will be able to provide objective and unbiased advice.

Refining the definition of "major subcontractor" to include upper and lower limits on application of the percentage factor test for determining if the value of the subcontract in relation to the prime contract warrants classifying the subcontract as major; specifically--

[cir] A subcontract less than the cost or pricing data threshold would not be considered a major subcontract; and

[cir] A subcontract equal to or exceeding $50 million would automatically be considered a major subcontract.

Addressing pre-MDAP as well as MDAP programs.

The following is a discussion of the comments and the changes included in this final rule as a result of those comments. Comments on aspects of the proposed rule that would have provided general coverage on OCIs outside the context of major defense acquisition programs are being considered in the formulation of the FAR rule.