Authority
Section 823 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024, amending sections 841, 842 and 843 of the NDAA for FY 2015
Summary
The deviation implements Vendor Threat Mitigation (VTM) authorities from section 823 of the NDAA for FY 2024. It requires contracting officers to insert two new clauses in all solicitations and contracts performed outside the United States, including commercial (Part 12) acquisitions. Heads of contracting activities (HCAs) gain authority to take covered procurement actions against entities engaging in covered activities.
Contracting Officer Actions
1
Insert clause 252.225-7962, Vendor Threat Mitigation Support to Operations. Use in all solicitations and contracts, including commercial (Part 12) acquisitions, performed outside the United States and its outlying areas.
2
Insert clause 252.225-7975, Additional Access to Contractor and Subcontractor Records. Use in all solicitations and contracts, including commercial (Part 12) acquisitions, performed outside the United States and its outlying areas.
3
Before taking a covered procurement action, verify the formal notification from the Office of the Under Secretary of Defense for Acquisition and Sustainment (OUSD(A&S)) meets all required elements listed in paragraph (b)(2)(i).
4
Treat HCA-directed contract terminations or voidances under this deviation as terminations for cause or default. Report them in the Contractor Performance Assessment Reporting System (CPARS).
5
For enterprise-wide exclusions, include the action in the System for Award Management (SAM). Request Defense Pricing, Contracting, and Acquisition Policy (DPCAP) entry of ineligible persons or entities in SAM at osd.pentagon.ousd-a-s.mbx.dpc-cp@mail.mil.
6
Notify the covered person or entity of a covered procurement action no later than 30 days before taking it. Inform them of their right to request administrative review within 30 days.
7
Do not disclose the combatant commander's rationale or classified information to the covered person or entity, except as permitted by a court protective order.
8
Submit a report to DPCAP and the identifying combatant commander within 15 days of taking a covered procurement action. Include all elements listed in paragraph (d)(2).
9
Before exercising authority to examine contractor records, obtain a written determination that the examination supports the combatant commander's VTM program and that less intrusive measures are unavailable.
HCA Authority Non-Delegable
The authority to take covered procurement actions is non-delegable. Only the HCA may exercise it.
Waiver Process
The HCA or the supported DoD Component may request a waiver from the combatant commander. A waiver is available when the action is not in the best interest of national security.
Classified Information Handling
Reports may be submitted in unclassified form with a classified annex, or fully classified. Coordinate with the combatant command to obtain classified intelligence summaries supporting HCA determinations.
Expiration
This deviation remains in effect until 2033-12-31 unless rescinded earlier.
Affected Provisions and Clauses
252.225-7962
CLAUSE
Add clause 252.225-7962
MODIFIED
252.225-7975
CLAUSE
Add clause 252.225-7975
MODIFIED