B. Analysis of Public Comment

Comment: The respondent noted that DFARS 209.105-2-70 uses the term "oD appointing official," while the clause, at DFARS 252.216-7007(a)(ii)(E), states that the determination is made by the Secretary of Defense. The respondent suggested that the same term be used in both locations.

Response: The terminology used was carefully considered by DoD. Section 834 of the statute requires the Secretary of Defense to provide for an "expeditious, independent investigation" and "make a final determination, pursuant to procedures established by the Secretary for purposes of this section. Defense Criminal Investigative Organizations (DCIOs) currently have procedures in place to conduct criminal investigations of contractor misconduct. These procedures are outside the acquisition regulatory process, and, further, there are differences in the procedural processes followed within different parts of DoD. After consideration of the comment, DoD determined that the DFARS text at 209.105-2-70 should be as specific as possible for the guidance of the contracting officer, i.e., "the DoD appointing official that requested a DoD investigation makes a final determination * * *" However, DoD used the "Secretary of Defense" in the DFARS clause because it is not necessary to specify to the contractor the delegation of authority within DoD.