Defense Federal Acquisition Regulation Supplement; Limitations on DoD Non-Commercial Time-and-Materials Contracts (DFARS Case 2007-D021), 21891-21892 [E8-8697]

Download as PDF Federal Register / Vol. 73, No. 79 / Wednesday, April 23, 2008 / Proposed Rules that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today’s proposed rule amendments on small entities, a small entity is defined as: (1) A small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The proposed rule amendments will not impose any new requirements on small entities, and, therefore, will have no significant adverse economic impact on subject small entities. The Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities. We continue to be interested in the potential impacts of the proposed rule amendments on small entities and welcome comments on issues related to such impacts. List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: April 16, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8–8811 Filed 4–22–08; 8:45 am] DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 216 mstockstill on PROD1PC66 with PROPOSALS RIN 0750–AF90 Defense Federal Acquisition Regulation Supplement; Limitations on DoD Non-Commercial Time-andMaterials Contracts (DFARS Case 2007–D021) Defense Acquisition Regulations System, Department of Defense (DoD). VerDate Aug<31>2005 16:23 Apr 22, 2008 Jkt 214001 SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to address review and documentation requirements with regard to the use of time-and-materials contracts for the acquisition of non-commercial services. The proposed rule provides for the same level of review for both commercial and non-commercial DoD time-andmaterials contracts. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before June 23, 2008, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2007–D021, using any of the following methods: Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. E-mail: dfars@osd.mil. Include DFARS Case 2007–D021 in the subject line of the message. Fax: 703–602–7887. Mail: Defense Acquisition Regulations System, Attn: Ms. Sandra Morris, OUSD (AT&L) DPAP (CPF), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301–3062. Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202–3402. Comments received generally will be posted without change to https:// www.regulations.gov, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Ms. Sandra Morris, 703–602–0296. SUPPLEMENTARY INFORMATION: Section 16.601(d) of the Federal Acquisition Regulation (FAR) requires that, before using a time-and-materials contract, the contracting officer must prepare a determination and findings that no other contract type is suitable. For time-and-materials contracts for commercial services, FAR 12.207(b)(2) specifies the minimum content for the determination and findings, and FAR 12.207(c) contains additional requirements with regard to the use of indefinite-delivery contracts priced on a time-and-materials basis. To provide for the same level of oversight in the award of all DoD timeand-materials contracts, this proposed rule amends DFARS 216.601 to establish determination and findings requirements for DoD non-commercial PO 00000 Frm 00041 Fmt 4702 time-and-materials contracts, similar to those presently required by FAR 12.207 for commercial services contracts. 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 proposed 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 proposed rule relates to internal DoD review and documentation requirements with regard to the selection of contract type. 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 subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2007–D021. 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 216 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, DoD proposes to amend 48 CFR part 216 as follows: PART 216—TYPES OF CONTRACTS 1. The authority citation for 48 CFR part 216 continues to read as follows: A. Background BILLING CODE 6560–50–P AGENCY: Proposed rule with request for comments. ACTION: 21891 Sfmt 4702 Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. 2. Section 216.601 is amended by adding paragraph (d) to read as follows: 216.601 Time-and-materials contracts. (d) Limitations. (i) The determination and findings shall contain sufficient facts and rationale to justify that no other contract type is suitable. At a minimum, the determination and findings shall— (A) Include a description of the market research conducted; (B) Establish that it is not possible at the time of placing the contract or order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of certainty; E:\FR\FM\23APP1.SGM 23APP1 21892 Federal Register / Vol. 73, No. 79 / Wednesday, April 23, 2008 / Proposed Rules (C) Establish that the requirement has been structured to minimize the use of time-and-materials requirements (e.g., limiting the value or length of the timeand-materials portion of the contract or order; establishing fixed prices for portions of the requirement); and (D) Describe the actions planned to minimize the use of time-and-materials contracts on future acquisitions for the same requirements. (ii) For indefinite-delivery contracts, the contracting officer shall— (A) Structure contracts that authorize time-and-materials orders to also authorize orders on a costreimbursement, incentive, or fixed-price basis, to the maximum extent practicable; and (B) Execute the determination and findings for— (1) Each order placed on a time-andmaterials basis if the indefinite-delivery contract also authorizes orders on a cost-reimbursement, incentive, or fixedprice basis; or (2) The basic contract if the indefinitedelivery contract only authorizes timeand-materials orders. The determination and findings shall— (i) Contain sufficient facts and rationale to justify why orders on a costreimbursement, incentive, and fixedprice basis are not practicable; and (ii) Be approved one level above the contracting officer. * * * * * documents. The proposed changes will enable the Government to provide for the appropriate level of contract quality assurance at source, based on product complexity and criticality and the contractor’s record of quality control. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before June 23, 2008, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2005–D024, using any of the following methods: Æ Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Æ E-mail: dfars@osd.mil. Include DFARS Case 2005–D024 in the subject line of the message. Æ Fax: 703–602–7887. Æ Mail: Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301–3062. Æ Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202–3402. Comments received generally will be posted without change to https:// www.regulations.gov, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, 703–602–0302. SUPPLEMENTARY INFORMATION: [FR Doc. E8–8697 Filed 4–22–08; 8:45 am] A. Background BILLING CODE 5001–08–P This proposed rule amends DFARS 246.471 to provide for contractor release of supplies for shipment, without Government authorization of the shipping documents, based on criteria that consider product complexity and criticality and the contractor’s record of quality control. In addition, changes are proposed to DD Form 250, Material Inspection and Receiving Report. Since DoD forms are not published in the Federal Register or the Code of Federal Regulations, the proposed changes to DD Form 250 do not appear in the amendatory portion of this proposed rule, but are described as follows: The statements in Blocks 21a and 21b (Contract Quality Assurance) of DD Form 250 are proposed to be changed, from ‘‘CQA/ACCEPTANCE of listed items has been made by me or under my supervision and they conform to contract, except as noted herein or on supporting documents’’, to ‘‘CQA/ ACCEPTANCE has been subject to Government contract quality assurance surveillance’’. The proposed changes provide for the representative signing the DD Form 250 at source to affirm that DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 246, 252 and Chapter 2 RIN 0750–AF88 Defense Federal Acquisition Regulation Supplement; Quality Assurance Authorization of Shipment of Supplies (DFARS Case 2005–D024) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule with request for comments. mstockstill on PROD1PC66 with PROPOSALS AGENCY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to revise the criteria under which the contract administration office may permit a contractor to release supplies for shipment without Government authorization of the shipping SUMMARY: VerDate Aug<31>2005 16:23 Apr 22, 2008 Jkt 214001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 the appropriate quality assurance activities have been accomplished. The clause at DFARS 252.246–7000, Material Inspection and Receiving Report, is amended to specify that a contractor’s submission of a receiving report constitutes the contractor’s affirmation that the items listed on the report conform to contract requirements. The existing DD Form 250 is available at https://www.dtic.mil/whs/directives/ infomgt/forms/formsprogram.htm. 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 proposed 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 proposed rule primarily relates to the allocation of Government resources to quality assurance functions. 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 2005–D024. 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 Parts 246 and 252 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, DoD proposes to amend 48 CFR parts 246 and 252 and Appendix F to Chapter 2 as follows: 1. The authority citation for 48 CFR parts 246 and 252 and Appendix F to subchapter I continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. PART 246—QUALITY ASSURANCE 2. Section 246.471 is amended as follows: a. By removing paragraph (a)(4); and b. By revising paragraph (b) heading and paragraph (b)(1) to read as follows: E:\FR\FM\23APP1.SGM 23APP1

Agencies

[Federal Register Volume 73, Number 79 (Wednesday, April 23, 2008)]
[Proposed Rules]
[Pages 21891-21892]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8697]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 216

RIN 0750-AF90


Defense Federal Acquisition Regulation Supplement; Limitations on 
DoD Non-Commercial Time-and-Materials Contracts (DFARS Case 2007-D021)

AGENCY: Defense Acquisition Regulations System, 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 address review and documentation 
requirements with regard to the use of time-and-materials contracts for 
the acquisition of non-commercial services. The proposed rule provides 
for the same level of review for both commercial and non-commercial DoD 
time-and-materials contracts.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before June 23, 2008, to be considered in 
the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2007-D021, 
using any of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov.
    Follow the instructions for submitting comments.
    E-mail: dfars@osd.mil. Include DFARS Case 2007-D021 in the subject 
line of the message.
    Fax: 703-602-7887.
    Mail: Defense Acquisition Regulations System, Attn: Ms. Sandra 
Morris, OUSD (AT&L) DPAP (CPF), IMD 3D139, 3062 Defense Pentagon, 
Washington, DC 20301-3062.
    Hand Delivery/Courier: Defense Acquisition Regulations System, 
Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-
3402.
    Comments received generally will be posted without change to http:/
/www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra Morris, 703-602-0296.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 16.601(d) of the Federal Acquisition Regulation (FAR) 
requires that, before using a time-and-materials contract, the 
contracting officer must prepare a determination and findings that no 
other contract type is suitable. For time-and-materials contracts for 
commercial services, FAR 12.207(b)(2) specifies the minimum content for 
the determination and findings, and FAR 12.207(c) contains additional 
requirements with regard to the use of indefinite-delivery contracts 
priced on a time-and-materials basis.
    To provide for the same level of oversight in the award of all DoD 
time-and-materials contracts, this proposed rule amends DFARS 216.601 
to establish determination and findings requirements for DoD non-
commercial time-and-materials contracts, similar to those presently 
required by FAR 12.207 for commercial services contracts.
    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 proposed 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 proposed rule relates to internal DoD review and 
documentation requirements with regard to the selection of contract 
type. 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 subpart in accordance with 5 
U.S.C. 610. Such comments should be submitted separately and should 
cite DFARS Case 2007-D021.

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 216

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
    Therefore, DoD proposes to amend 48 CFR part 216 as follows:

PART 216--TYPES OF CONTRACTS

    1. The authority citation for 48 CFR part 216 continues to read as 
follows:

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

    2. Section 216.601 is amended by adding paragraph (d) to read as 
follows:


216.601  Time-and-materials contracts.

    (d) Limitations.
    (i) The determination and findings shall contain sufficient facts 
and rationale to justify that no other contract type is suitable. At a 
minimum, the determination and findings shall--
    (A) Include a description of the market research conducted;
    (B) Establish that it is not possible at the time of placing the 
contract or order to accurately estimate the extent or duration of the 
work or to anticipate costs with any reasonable degree of certainty;

[[Page 21892]]

    (C) Establish that the requirement has been structured to minimize 
the use of time-and-materials requirements (e.g., limiting the value or 
length of the time-and-materials portion of the contract or order; 
establishing fixed prices for portions of the requirement); and
    (D) Describe the actions planned to minimize the use of time-and-
materials contracts on future acquisitions for the same requirements.
    (ii) For indefinite-delivery contracts, the contracting officer 
shall--
    (A) Structure contracts that authorize time-and-materials orders to 
also authorize orders on a cost-reimbursement, incentive, or fixed-
price basis, to the maximum extent practicable; and
    (B) Execute the determination and findings for--
    (1) Each order placed on a time-and-materials basis if the 
indefinite-delivery contract also authorizes orders on a cost-
reimbursement, incentive, or fixed-price basis; or
    (2) The basic contract if the indefinite-delivery contract only 
authorizes time-and-materials orders. The determination and findings 
shall--
    (i) Contain sufficient facts and rationale to justify why orders on 
a cost-reimbursement, incentive, and fixed-price basis are not 
practicable; and
    (ii) Be approved one level above the contracting officer.
* * * * *

 [FR Doc. E8-8697 Filed 4-22-08; 8:45 am]
BILLING CODE 5001-08-P
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