Effective immediately, contracting officers shall use the attached clause in covered contracts, when using funds appropriated or otherwise made available for use by the Defense Appropriations Act for Fiscal Year 2010 (FY 10) (Pub. L. 111-118). This class deviation implements section 8116 of that Act.
This deviation prohibits the use of FY 10 funds for any contract (including task or delivery orders and bilateral modifications) in excess of $1 million that is awarded after February 17, 2010, unless the contractor agrees not to-
The clause provided by this deviation also requires that after June 17, 2010, no FY 10 funds may be expended unless the contractor certifies that it requires each covered subcontractor to agree not to enter into, and not to take any action to enforce any provision of any agreement, as described in the previous sentence, with respect to any employee or independent contractor performing work related to such subcontract.
This deviation does not apply to the acquisition of commercial items or commercially available off-the-shelf (COTS) items. Additionally, the clause allows the Secretary of Defense to waive the applicability to a particular contract or subcontract, if necessary to avoid harm to national security interests.
Contracting officers shall modify on a bilateral basis, in accordance with FAR 1.108(d)(3), existing contracts, if FY 10 funds will be used for bilateral modifications or orders that exceed $1 million and are issued after the effective date of this deviation. In the event that a contractor refuses to accept such a modification, the contractor will not be eligible for receipt of FY 10 funds on such modifications or orders. For example:
This class deviation remains in effect until incorporated in the DFARS or until otherwise rescinded. We intend to publish an interim DFARS rule. We will consider comments received within two weeks after the date of this deviation in the formulation of the interim rule. Comments received after this period of time will be considered in the formulation of the final rule.