Defense Federal Acquisition Regulation Supplement; Contracting by Negotiation, 14624-14625 [05-5628]

Agencies

• DEPARTMENT OF DEFENSE

[Federal Register Volume 70, Number 55 (Wednesday, March 23, 2005)]
[Proposed Rules]
[Pages 14624-14625]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5628]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

48 CFR Part 215

[DFARS Case 2003-D077]


Defense Federal Acquisition Regulation Supplement; Contracting by 
Negotiation

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to update text pertaining to contracting 
by negotiation. This proposed rule is a result of a transformation 
initiative undertaken by DoD to dramatically change the purpose and 
content of the DFARS.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before May 23, 2005, to be considered in 
the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2003-D077, 
using any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Defense Acquisition Regulations Web site: https://
emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for 
submitting comments.
     E-mail: dfars@osd.mil. Include DFARS Case 2003-D077 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations Council, Attn: Ms. 
Michele Peterson, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    All comments received will be posted to https://
emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, (703) 602-0311.

SUPPLEMENTARY INFORMATION:

A. Background

    DFARS Transformation is a major DoD initiative to dramatically 
change the purpose and content of the DFARS. The objective is to 
improve the efficiency and effectiveness of the acquisition process, 
while allowing the acquisition workforce the flexibility to innovate. 
The transformed DFARS will contain only requirements of law, DoD-wide 
policies, delegations of FAR authorities, deviations from FAR 
requirements, and policies/procedures that have a significant effect 
beyond the internal operating procedures of DoD or a significant cost 
or administrative impact on contractors or offerors. Additional 
information on the DFARS Transformation initiative is available at 
https://www.acq.osd.mil/dpap/dfars/transf.htm.
    This proposed rule is a result of the DFARS Transformation 
initiative. The proposed changes--
     Delete unnecessary text at DFARS 215.000, 215.204-1, 
215.304(c)(ii), and 215.305(b).
     Delete text at DFARS 215.204-2 regarding line item 
identification requirements for contracts containing both fixed-price 
and cost-reimbursement line items. This text was proposed for addition 
to DFARS subpart 204.71, in the proposed rule published at 69 FR 35564 
on June 25, 2004, under DFARS Case 2003-D009.
     Delete text at DFARS 215.303 and 215.304 containing 
procedures for

[[Page 14625]]

preparation of source selection plans and examples of source selection 
evaluation factors. This text will be relocated to the new DFARS 
companion resource, Procedures, Guidance, and Information (PGI), 
available at https://www.acq.osd.mil/dpap/dars/pgi.
     Update references to the clauses at FAR 52.219-8 and 
52.219-9, to reflect the current clause titles.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule 
makes no significant change to DoD contracting policy. Therefore, DoD 
has not performed an initial regulatory flexibility analysis. DoD 
invites comments from small businesses and other interested parties. 
DoD also will consider comments from small entities concerning the 
affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments 
should be submitted separately and should cite DFARS Case 2003-D077.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Part 215

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
    Therefore, DoD proposes to amend 48 CFR part 215 as follows:

    1. The authority citation for 48 CFR part 215 continues to read as 
follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 215--CONTRACTING BY NEGOTIATION


215.000  [Removed]

    2. Section 215.000 is removed.

Subpart 215.2--[Removed]

    3. Subpart 215.2 is removed.
    4. Sections 215.303 through 215.305 are revised to read as follows:


215.303  Responsibilities.

    (b)(2) For high-dollar value and other acquisitions, as prescribed 
by agency procedures, the source selection authority shall approve a 
source selection plan before the solicitation is issued. Follow the 
procedures at PGI 215.303(b)(2) for preparation of the source selection 
plan.


215.304  Evaluation factors and significant subfactors.

    (c)(i) In acquisitions that require use of the clause at FAR 
52.219-9, Small Business Subcontracting Plan, other than those based on 
the lowest price technically acceptable source selection process (see 
FAR 15.101-2), the extent of participation of small businesses and 
historically black colleges or universities and minority institutions 
in performance of the contract shall be addressed in source selection. 
The contracting officer shall evaluate the extent to which offerors 
identify and commit to small business and historically black college or 
university and minority institution performance of the contract, 
whether as a joint venture, teaming arrangement, or subcontractor.
    (A) See PGI 215.304(c)(i)(A) for examples of evaluation factors.
    (B) Proposals addressing the extent of small business and 
historically black college or university and minority institution 
performance may be separate from subcontracting plans submitted 
pursuant to the clause at FAR 52.219-9 and should be structured to 
allow for consideration of offers from small businesses.
    (C) When an evaluation assesses the extent that small businesses 
and historically black colleges or universities and minority 
institutions are specifically identified in proposals, the small 
businesses and historically black colleges or universities and minority 
institutions considered in the evaluation shall be listed in any 
subcontracting plan submitted pursuant to FAR 52.219-9 to facilitate 
compliance with 252.219-7003(g).


215.305  Proposal evaluation.

    (a)(2) Past performance evaluation. When a past performance 
evaluation is required by FAR 15.304, and the solicitation includes the 
clause at FAR 52.219-8, Utilization of Small Business Concerns, the 
evaluation factors shall include the past performance of offerors in 
complying with requirements of that clause. When a past performance 
evaluation is required by FAR 15.304, and the solicitation includes the 
clause at FAR 52.219-9, Small Business Subcontracting Plan, the 
evaluation factors shall include the past performance of offerors in 
complying with requirements of that clause.
[FR Doc. 05-5628 Filed 3-22-05; 8:45 am]
BILLING CODE 5001-08-P