Rule2022-05531
Defense Federal Acquisition Regulation Supplement: Postaward Debriefings (DFARS Case 2018-D009)
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Published
March 18, 2022
Effective
March 18, 2022
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2018 that provides enhanced postaward debriefing rights under negotiated contracts, task orders, and delivery orders.
Full Text
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<title>Federal Register, Volume 87 Issue 53 (Friday, March 18, 2022)</title>
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[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Rules and Regulations]
[Pages 15808-15812]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05531]
[[Page 15807]]
Vol. 87
Friday,
No. 53
March 18, 2022
Part IV
Department of Defense
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Defense Acquisition Regulations System
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48 CFR Parts 204, 208, 209, et al.
Defense Federal Acquisition Regulations; Final Rules and Proposed Rule
Federal Register / Vol. 87 , No. 53 / Friday, March 18, 2022 / Rules
and Regulations
[[Page 15808]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 215, 216, 233, and 252
[Docket DARS-2021-0010]
RIN 0750-AJ73
Defense Federal Acquisition Regulation Supplement: Postaward
Debriefings (DFARS Case 2018-D009)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act for Fiscal Year 2018 that provides
enhanced postaward debriefing rights under negotiated contracts, task
orders, and delivery orders.
DATES: Effective March 18, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Ziegler, telephone 571-
372-6095.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 86 FR
27354 on May 20, 2021, to implement section 818 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91).
Section 818 amends 10 U.S.C. 2305 to enhance postaward debriefing
rights for competitive negotiated contracts, task orders, and delivery
orders that exceed $10 million and to provide offerors the opportunity,
upon receiving a postaward debriefing, to submit follow-up questions
related to the debriefing and to receive agency responses. Section 818
also amends 31 U.S.C. 3553(d)(4) to delay the beginning of the
timeframe during which the contracting officer shall immediately
suspend contract performance or terminate the awarded contract if a
protest is filed. These changes may also impact the timeframe for
filing a timely protest. Four respondents submitted public comments in
response to the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments and the changes made to the rule as
a result of those comments is provided, as follows:
A. Summary of Significant Changes From the Proposed Rule
Edits were made to the proposed rule to clarify the time periods
for requesting, delivering, and completing the postaward debriefing,
including the impact of additional questions on the timely submission
of protests to the Government Accountability Office (GAO). Conforming
edits were made to the time periods associated with protests to the GAO
and in the solicitation provision and contract clause.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Some respondents supported the rule.
Response: DoD acknowledges the support.
2. Clarification of Protest Timeline
Comment: Some respondents requested that DoD clarify the timelines
for additional questions as it pertains to the protest window.
Response: DoD has simplified the text throughout the final rule to
address potential confusion and adopt the plain language interpretation
in Nika Technologies Inc. v. United States, United States Court of
Appeals for the Federal Circuit, decided February 4, 2021. The final
rule is revised to clarify that, for DoD, the 5-day protest window at
Federal Acquisition Regulation (FAR) 33.104 begins on the date that the
postaward debriefing is offered, unless additional questions are
received within 2 business days after the debriefing date. If the
agency receives timely additional questions from the offeror, the
agency will respond in writing within 5 business days. Upon delivery of
the agency response, the 5-day protest window will begin.
3. Expansion to Successful Offerors
Comment: One respondent expressed concerns that the proposed rule
expands the requirement to provide a postaward debriefing to successful
offerors, although section 818 only requires a debriefing of
disappointed offerors.
Response: The proposed rule does not expand the requirement for
postaward debriefings to successful offerors, because the FAR already
provides for postaward debriefings to both successful and unsuccessful
offerors at FAR 15.506(b).
4. Untimely Additional Questions
Comment: One respondent recommended that additional questions be
permitted more than 2 days after the debriefing and answered
voluntarily without impacting the process.
Response: While contracting officers have the discretion to
voluntarily answer questions received after the postaward debriefing is
concluded, the statute requires a response to only those questions
received within 2 business days after the postaward debriefing.
5. Source Selection Decision Document Release
Comment: One respondent recommended DoD provide the source
selection decision document prior to the postaward debriefing, because
it may result in more relevant questions and fewer requests for
debriefings.
Response: The statute provides that certain offerors requesting a
debriefing in accordance with FAR 15.506 are eligible to receive a
redacted source selection decision document as part of the postaward
debriefing. As a result of section 818, debriefed offerors will have
the opportunity to submit additional follow-up questions about the
debriefing, including questions about the source selection decision
document.
6. Document Redaction Standards
Comment: One respondent expressed concerns that the quality of
redactions is inconsistent and suggested that strict standards be set
for redacting source selection documentation to protect proprietary
information before implementing this policy change.
Response: Establishing additional redaction guidelines beyond those
already in the FAR is outside scope of this rule.
C. Other Changes
The final rule also--
<bullet> Corrects the location of the online annual representations
and certifications in the System for Award Management at DFARS
212.301(f) to reflect <a href="https://www.sam.gov">https://www.sam.gov</a>;
<bullet> Redesignates DFARS 216.506 paragraph (S-70) as 216.506-70
paragraph (a); and
<bullet> At 215.570 and 216.506-70 clarifies that the prescriptions
for the new DFARS provision and clause apply to acquisitions valued at
$10 million or more.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products Including Commercially
Available Off-the-Shelf (COTS) Items, and for Commercial Services
This final rule creates one new solicitation provision at 252.215-
7016, Notification to Offerors--Postaward Debriefings, for use in
competitive
[[Page 15809]]
negotiated solicitations, and one new contract clause at 252.216-7010,
Postaward Debriefings for Task Orders and Delivery Orders, for use in
multiple-award contracts. DoD is not applying the rule to contracts and
subcontracts valued at or below the SAT. DoD is applying the rule to
contracts for the acquisition of commercial products including COTS
items and for the acquisition of commercial services.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT)
41 U.S.C 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to such contracts or subcontracts. 41
U.S.C. 1905 provides that if a provision of law contains criminal or
civil penalties, or if the Federal Acquisition Regulatory Council (FAR
Council) makes a determination that it is not in the best interest of
the Federal Government to exempt contracts or subcontracts at or below
the SAT, the law will apply to them. The Principal Director, Defense
Pricing and Contracting (DPC), is the appropriate authority to make
comparable determinations for regulations to be published in the DFARS,
which is part of the FAR system of regulations. DoD did not make that
determination. Therefore, this rule does not apply below the SAT.
B. Applicability to Contracts for the Acquisition of Commercial
Products Including Commercially Available Off-the-Shelf (COTS) Items
and for the Acquisition of Commercial Services
10 U.S.C. 2375 governs the applicability of laws to DoD contracts
and subcontracts for the acquisition of commercial products including
COTS items and for the acquisition of commercial services, and is
intended to limit the applicability of laws to contracts for the
acquisition of commercial products including COTS items and for the
acquisition of commercial services. 10 U.S.C. 2375 provides that if a
provision of law contains criminal or civil penalties, or if the Under
Secretary of Defense for Acquisition and Sustainment (USD(A&S)) makes a
written determination that it is not in the best interest of the
Federal Government to exempt commercial product contracts and
commercial service contracts, the provision of law will apply to
contracts for the acquisition of commercial products and commercial
services. Due to delegations of authority from USD(A&S), the Principal
Director, DPC is the appropriate authority to make this determination.
DoD has made that determination. Therefore, this rule does apply to the
acquisition of commercial products including COTS items and to the
acquisition of commercial services, if otherwise applicable.
C. Determination
Given that the requirements of section 818 apply to contracts
valued at $10 million or higher, DoD will not apply the requirements of
section 818 to contracts valued at or below the SAT. However, DoD will
apply the requirements of section 818 to negotiated procurements and
contracts for the acquisition of commercial products including COTS
items and for the acquisition of commercial services.
It is not in the best interest of the Federal Government to exempt
application of this rule to commercial products including COTS items
and to commercial services, for the following reasons. Implementation
of section 818 affords offerors the opportunity for enhanced postaward
debriefings for contracts, task orders, and delivery orders that exceed
$10 million. Implementation provides offerors the opportunity, upon
receiving a postaward debriefing, to submit follow-up questions related
to the debriefing and to receive an agency response. These enhanced
postaward debriefing requirements will assist in developing small
business capabilities, provide increased participation, and promote
competition. Properly conducted postaward debriefings with this
enhanced transparency may minimize the number of unnecessary protests
filed while strengthening relationships between DoD and industry.
Applying these requirements to the acquisition of commercial
products and commercial services does not increase the burden on
offerors, since the rule only enhances existing requirements concerning
postaward debriefings. Exclusion of acquisitions of commercial products
including COTS items and of commercial services would greatly limit
access to the benefits afforded to successful and unsuccessful offerors
by the section 818 requirements.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
This rule amends the DFARS to implement section 818 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L.
115-91), which provides offerors and contractors with significantly
enhanced written or oral debriefing information for negotiated
contracts and task orders or delivery orders that exceed $100 million,
and the opportunity for small entities and nontraditional defense
contractors to obtain such information for awards that exceed $10
million but do not exceed $100 million.
The objective of the rule is to ensure offerors are provided a
standard written or oral postaward debriefing at the dollar thresholds
in the statute, while protecting the confidential and proprietary
information of other offerors. The statute also provides direction to
contracting officers when notified that a protest has been received by
the Government Accountability Office.
There were no significant issues raised by the public in response
to the initial regulatory flexibility analysis.
This rule is not expected to have a significant economic impact on
a substantial number of small entities, because the enhanced ability to
obtain source selection information for actions over $10 million by
submitting questions is voluntary. However,
[[Page 15810]]
obtaining such additional information may be helpful to entities
competing on future actions.
Data obtained from the Federal Procurement Data System for FYs
2018, 2019, and 2020 indicate that DoD awarded an average of
approximately 5,534 negotiated awards and delivery orders or task
orders per year valued between $10 and $100 million. Of those actions,
an average of 3,994 were awarded to approximately 1,543 unique small
entities and 1,311 nontraditional defense contractors. Based upon that
data, approximately 1,543 unique small entities will have the
opportunity to request and obtain enhanced debriefing information if
desired.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small businesses.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known significant alternative approaches to the rule
that would meet the requirements of the statute.
VII. Paperwork Reduction Act
The rule does not contain information collection requirements that
require the approval of the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 212, 215, 216, 233, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 215, 216, 233, and 252 are amended as
follows:
0
1. The authority citation for 48 CFR parts 212, 215, 216, 233, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 212.301 by--
0
a. In paragraph (f) introductory text, removing ``<a href="https://www.acquisition.gov">https://www.acquisition.gov</a>'' and adding ``<a href="https://www.sam.gov">https://www.sam.gov</a>'' in its place;
0
b. Adding paragraph (f)(vi)(F);
0
c. Redesignating paragraphs (f)(vii) through (xviii) as paragraphs
(f)(viii) through (xix); and
0
d. Adding new paragraph (f)(vii).
The additions read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(vi) * * *
(F) Use the provision at 252.215-7016, Notification to Offerors--
Postaward Debriefings, as prescribed in 215.570, to comply with section
818 of the National Defense Authorization Act for Fiscal Year 2018
(Pub. L. 115-91).
(vii) Part 216--Types of Contracts. Use the clause at 252.216-7010,
Postaward Debriefings for Task Orders and Delivery Orders, as
prescribed in 216.506-70(b), to comply with section 818 of the National
Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91).
* * * * *
PART 215--CONTRACTING BY NEGOTIATION
0
3. Amend section 215.506 by adding paragraphs (b) and (d) to read as
follows:
215.506 Postaward debriefing of offerors.
(b) Notwithstanding FAR 15.506(b), when requested by a successful
or unsuccessful offeror, a written or oral debriefing is required for
contract awards valued at $10 million or more (section 818 of the
National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-
91)).
(d) In addition to the requirements of FAR 15.506(d), the minimum
debriefing information shall include the following:
(i) For award of a contract in excess of $10 million and not in
excess of $100 million with a small business or nontraditional defense
contractor, an option for the small business or nontraditional defense
contractor to request disclosure of the agency's written source
selection decision document, redacted to protect the confidential and
proprietary information of other offerors for the contract award.
(ii) For award of a contract in excess of $100 million, disclosure
of the agency's written source selection decision document, redacted to
protect the confidential and proprietary information of other offerors
for the contract award.
* * * * *
0
4. Add section 215.506-70 to read as follows:
215.506-70 Opportunity for follow-up questions.
When providing a required postaward debriefing to successful and
unsuccessful offerors, contracting officers shall--
(a) Provide an opportunity to submit additional written questions
related to the required debriefing not later than 2 business days after
receiving the postaward debriefing;
(b) Respond in writing to timely submitted additional questions
within 5 business days after receipt of the questions; and
(c) Not consider the postaward debriefing to be concluded until the
later of--
(1) The date that the postaward debriefing is delivered, orally or
in writing; or
(2) If additional written questions related to the debriefing are
timely received, the date the agency delivers its written response.
0
5. Add section 215.570 to read as follows:
215.570 Solicitation provision.
Use the provision at 252.215-7016, Notification to Offerors--
Postaward Debriefings, in competitive negotiated solicitations for
contract awards valued at $10 million or more, including solicitations
using FAR part 12 procedures for the acquisition of commercial items.
PART 216--TYPES OF CONTRACTS
0
6. Amend section 216.505 by adding paragraphs (b)(6) introductory text
and (b)(6)(ii) to read as follows:
216.505 Ordering.
* * * * *
(b) * * *
(6) Postaward notices and debriefing of awardees for orders
exceeding $6 million. In addition to the notice required at FAR
16.505(b)(6), a written or oral postaward debriefing of successful and
unsuccessful awardees is required for task orders and delivery orders
valued at $10 million or more (section 818 of the National Defense
Authorization Act for Fiscal Year 2018 (Pub. L. 115-91)).
(ii) Follow the procedures at 215.506 and 215.506-70 when providing
the postaward debriefing to successful and unsuccessful awardees for
task orders or delivery orders valued at $10 million or more.
0
7. Revise section 216.506 to read as follows:
216.506 Solicitation provisions and contract clauses.
0
8. Add section 216.506-70 to read as follows:
216.506-70 Additional solicitation provisions and contract clause.
(a) Use the provisions at 252.215-7007, Notice of Intent to
Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.371-6
and 215.408(3), respectively.
[[Page 15811]]
(b) Use the clause at 252.216-7010, Postaward Debriefings for Task
Orders and Delivery Orders, in competitive negotiated solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items, when a multiple-
award contract is contemplated and task orders or delivery orders
placed under the contract may be valued at $10 million or more.
PART 233--PROTESTS, DISPUTES, AND APPEALS
233.102 [Amended]
0
9. Amend section 233.102 by removing ``Government Accountability
Office'' and adding ``Government Accountability Office (GAO)'' in its
place.
0
10. Add section 233.104 to read as follows:
233.104 Protests to GAO.
(c) Protests after award. (1) In lieu of the time periods in FAR
33.104(c)(1), contracting officers shall immediately suspend
performance or terminate the awarded contract, task order, or delivery
order upon notice from the GAO of a protest filed within the time
periods listed in paragraphs (c)(1)(A) through (D) of this section,
whichever is later, except as provided in FAR 33.104(c)(2) and (3)--
(A) Within 10 days after the date of contract award;
(B) Within 10 days after the date a task order or delivery order is
issued, where the value exceeds $25 million (10 U.S.C. 2304c(e));
(C) Within 5 days after a debriefing date offered to the protestor
under a timely debriefing request in accordance with FAR 15.506
regardless of whether the protestor rejected the offered debriefing
date, unless an earlier debriefing date is negotiated as a result; or
(D) Within 5 days after a postaward debriefing under FAR 15.506 is
concluded in accordance with 215.506-70(b).
233.171 [Amended]
0
11. Amend section 233.171 by removing ``Government Accountability
Office'' and adding ``GAO'' in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. Add section 252.215-7016 to read as follows:
252.215-7016 Notification to Offerors--Postaward Debriefings.
As prescribed in 215.570, use the following provision:
Notification to Offerors--Postaward Debriefings (Mar 2022)
(a) Definition. As used in this provision--
Nontraditional defense contractor means an entity that is not
currently performing and has not performed any contract or
subcontract for DoD that is subject to full coverage under the cost
accounting standards prescribed pursuant to 41 U.S.C. 1502 and the
regulations implementing such section, for at least the 1-year
period preceding the solicitation of sources by DoD for the
procurement (10 U.S.C. 2302(9)).
(b) Postaward debriefing.
(1) Upon timely request, the Government will provide a written
or oral postaward debriefing to successful or unsuccessful offerors
for contract awards valued at $10 million or more, while protecting
the confidential and proprietary information of other offerors. The
request is considered timely if received within 3 days of
notification of contract award.
(2) When required, the minimum postaward debriefing information
will include the following:
(i) For contracts in excess of $10 million and not in excess of
$100 million with a small business or nontraditional defense
contractor, an option for the small business or nontraditional
defense contractor to request disclosure of the agency's written
source selection decision document, redacted to protect the
confidential and proprietary information of other offerors for the
contract award.
(ii) For contracts in excess of $100 million, disclosure of the
agency's written source selection decision document, redacted to
protect the confidential and proprietary information of other
offerors for the contract award.
(3) If a required postaward debriefing is provided--
(i) The debriefed Offeror may submit additional written
questions related to the debriefing not later than 2 business days
after the date of the debriefing;
(ii) The agency will respond in writing to timely submitted
additional questions within 5 business days after receipt by the
contracting officer; and
(iii) The postaward debriefing will not be considered to be
concluded until the later of--
(A) The date that the postaward debriefing is delivered, orally
or in writing; or
(B) If additional written questions related to the debriefing
are timely received, the date the agency delivers its written
response.
(c) Contract performance. The Government may suspend performance
of or terminate the awarded contract upon notice from the Government
Accountability Office of a protest filed within the time periods
listed in paragraphs (c)(1) through (3) of this provision, whichever
is later:
(1) Within 10 days after the date of contract award.
(2) Within 5 days after a debriefing date offered to the
protestor under a timely debriefing request in accordance with
Federal Acquisition Regulation (FAR) 15.506 unless an earlier
debriefing date is negotiated as a result.
(3) Within 5 days after a postaward debriefing under FAR 15.506
is concluded in accordance with Defense Federal Acquisition
Regulation Supplement 215.506-70(b).
(End of provision)
0
13. Add section 252.216-7010 to read as follows:
252.216-7010 Postaward Debriefings for Task Orders and Delivery
Orders.
As prescribed at 216.506-70(b), use the following clause:
Postaward Debriefings for Task Orders and Delivery Orders (Mar 2022)
(a) Postaward debriefing.
(1) Upon timely request, the Government will provide a written
or oral postaward debriefing for task orders or delivery orders
valued at $10 million or more to the Contractor, regardless of
whether the Contractor's offer for the task order or delivery order
was successful or unsuccessful, while protecting the confidential
and proprietary information of other contractors. The request is
considered timely if received within 3 days of notification of task
order or delivery order award.
(2) If a required postaward debriefing is provided--
(i) The debriefed Contractor may submit additional written
questions related to the required and provided debriefing within 2
business days after the date of the debriefing;
(ii) The agency will respond in writing to timely submitted
additional questions within 5 business days after receipt; and
(iii) The postaward debriefing will not be considered to be
concluded until the later of--
(A) The date that the postaward debriefing is delivered, orally
or in writing; or
(B) If additional written questions related to the debriefing
are timely received, the date the agency delivers its written
response.
(b) Task order or delivery order performance. The Government may
suspend performance of or terminate the awarded task order or
delivery order upon notice from the Government Accountability Office
of a protest filed within the time periods listed in paragraphs
(b)(1) through (3) of this clause, whichever is later:
(1) Within 10 days after the date a task order or delivery order
is issued, where the value exceeds $25 million (10 U.S.C. 2304c(e)).
(2) Within 5 days after a debriefing date offered to the
protestor under a timely debriefing request in accordance with
Federal Acquisition Regulation (FAR) 15.506 unless an earlier
debriefing date is negotiated as a result.
(3) Within 5 days after a postaward debriefing under FAR 15.506
is concluded in accordance with Defense Federal Acquisition
Regulation Supplement 215.506-70(b).
[[Page 15812]]
(End of clause)
[FR Doc. 2022-05531 Filed 3-17-22; 8:45 am]
BILLING CODE 5001-06-P
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