Defense Federal Acquisition Regulation Supplement; Acquisition Strategies To Ensure Competition Throughout the Life Cycle of Major Defense Acquisition Programs, 8272-8273 [2010-3713]

Download as PDF cprice-sewell on DSK2BSOYB1PROD with RULES 8272 Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations respond to a collection of information unless it displays a currently valid OMB control number, or is otherwise required to submit the specific information by a statute. The OMB control numbers for EPA’s regulations are codified in 40 CFR chapter I, after appearing in the preamble of the final rule, are further displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in a list at 40 CFR 9.1. The information collection activities related to the submission of information pursuant to TSCA section 5 have already been approved by OMB under OMB Control No. 2070–0012 (EPA Information Collection Request [ICR] No. 574). The burden for that ICR is estimated to average 100 hours per respondent, including time for reading the regulations, processing, compiling, and reviewing the requested data, generating the request, storing, filing, and maintaining the data. This action is not subject to noticeand-comment requirements under the APA or any other statute, and is not subject to the provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104–4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Nor does this action significantly or uniquely affect the communities of tribal governments as specified by Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (59 FR 22951, November 9, 2000). Executive Orders 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) and 13211, entitled Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), do not apply to this action because this action is not ‘‘economically significant’’ as defined by section 3(f) of Executive Order 12866. Nor does this action establish an VerDate Nov<24>2008 15:09 Feb 23, 2010 Jkt 220001 environmental standard that may have a negatively disproportionate effect on children, or otherwise have any significant adverse effect on the supply, distribution, or use of energy. This action does not involve any technical standards that require the Agency’s consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note). This action will not have an adverse impact on the environmental and health conditions in low-income and minority communities. Therefore, under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994), the Agency is not required to and has not considered environmental justice-related issues. V. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1966, does not apply because this action is not a rule for purposes of 5 U.S.C. 804(3). List of Subjects in 40 CFR Subchapter R Environmental protection, Chemical substances, Hazardous substances, Imports, Manuafacturing, Reporting and recordkeeping requirements. Dated: February 17, 2010. James Jones, Acting Assistant Administrator, Office of Prevention, Pesticides and Toxic Substances. [FR Doc. 2010–3675 Filed 2–23–10; 8:45 am] BILLING CODE 6560–50–S ACTION: Interim rule with request for comments. SUMMARY: DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the Weapon Systems Acquisition Reform Act of 2009, section 202, Acquisition Strategies to Ensure Competition throughout the Lifecycle of Major Defense Acquisition Programs. DATES: Effective Date: February 24, 2010. Comment Date: Comments on this interim rule should be submitted in writing to the address shown below on or before April 26, 2010, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2009–D014, using any of the following methods: Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. E-mail: dfars@osd.mil. Include DFARS Case 2009–D014 in the subject line of the message. Fax: 703–602–0350. Mail: Defense Acquisition Regulations System, Attn: Ms. Meredith Murphy, OUSD (AT&L) DPAP (DARS), 3060 Defense Pentagon, Room 3B855, Washington, DC 20301–3060. 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. Meredith Murphy, 703–602–1302. SUPPLEMENTARY INFORMATION: A. Background DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 207 [DFARS Case 2009–D014] RIN 0750–AG61 Defense Federal Acquisition Regulation Supplement; Acquisition Strategies To Ensure Competition Throughout the Life Cycle of Major Defense Acquisition Programs AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 On May 22, 2009, The Weapon Systems Acquisition Reform Act (Pub. L. 111–23) was enacted to improve the organization and procedures of DoD for the acquisition of major weapon systems. This law establishes new oversight entities within DoD, as well as new and varied weapon system acquisition and management reporting requirements. Section 202 directs the Secretary of Defense (SECDEF) to ensure that the acquisition strategy for each MDAP includes: (1) Measures to ensure competition at both the prime contract and subcontract level of the MDAP throughout its life cycle as a means to improve contractor performance; and (2) adequate documentation of the rationale for selection of the E:\FR\FM\24FER1.SGM 24FER1 Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Rules and Regulations subcontractor tier or tiers. It also outlines measures to ensure such competition. Furthermore, it requires the SECDEF: (1) To take specified actions to ensure fair and objective ‘‘make-buy’’ decisions by prime contractors on MDAPs; and (2) whenever a decision regarding the source of repair results in a plan to award a contract for performance of maintenance and sustainment of a major weapon system, to ensure that such contract is awarded on a competitive basis with full consideration of all sources. B. Regulatory Flexibility Act DoD does not expect this interim 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 change is to internal Government operating procedures. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2009–D014) in correspondence. 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. D. Determination To Issue an Interim Rule cprice-sewell on DSK2BSOYB1PROD with RULES A determination has been made under the authority of the Secretary of Defense (DoD) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comments. This action is necessary because section 202 of the VerDate Nov<24>2008 15:09 Feb 23, 2010 Jkt 220001 Weapon Systems Acquisition Reform Act of 2009 became effective upon enactment on May 22, 2009. However, pursuant to 41 U.S.C. 418b, DoD will consider public comments received in response to this interim rule in the formation of the final rule. List of Subjects in 48 CFR Part 207 Government procurement. Ynette R. Shelkin, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 207 is amended as follows: ■ 1. The authority citation for 48 CFR part 207 continues to read as follows: ■ Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. PART 207—ACQUISITION PLANNING 2. Section 207.106 is amended by adding a new paragraph (S–72) to read as follows: ■ 207.106 Additional requirements for major systems. * * * * * (S–72)(1) In accordance with section 202 of the Weapon Systems Acquisition Reform Act of 2009 (Pub. L. 111–23), acquisition plans for major defense acquisition programs as defined in 10 U.S.C. 2430, shall include measures that— (i) Ensure competition, or the option of competition, at both the prime contract level and subcontract level (at such tier or tiers as are appropriate) throughout the program life cycle as a means to improve contractor performance; and (ii) Document the rationale for the selection of the appropriate subcontract tier or tiers under paragraph (S–72)(1)(i) of this section, and the measures which will be employed to ensure competition, or the option of competition. (2) Measures to ensure competition, or the option of competition, may include, but are not limited to, cost-effective measures intended to achieve the following: (i) Competitive prototyping. (ii) Dual-sourcing. PO 00000 Frm 00035 Fmt 4700 Sfmt 9990 8273 (iii) Unbundling of contracts. (iv) Funding of next-generation prototype systems or subsystems. (v) Use of modular, open architectures to enable competition for upgrades. (vi) Use of build-to-print approaches to enable production through multiple sources. (vii) Acquisition of complete technical data packages. (viii) Periodic competitions for subsystem upgrades. (ix) Licensing of additional suppliers. (x) Periodic system or program reviews to address long-term competitive effects of program decisions. (3) In order to ensure fair and objective ‘‘make-or-buy’’ decisions by prime contractors, acquisition strategies and resultant solicitations and contracts shall— (i) Require prime contractors to give full and fair consideration to qualified sources other than the prime contractor for the development or construction of major subsystems and components of major weapon systems; (ii) Provide for Government surveillance of the process by which prime contractors consider such sources and determine whether to conduct such development or construction in-house or through a subcontract; and (iii) Provide for the assessment of the extent to which the prime contractor has given full and fair consideration to qualified sources in sourcing decisions as a part of past performance evaluations. (4) Whenever a source-of-repair decision results in a plan to award a contract for the performance of maintenance and sustainment services on a major weapon system, to the maximum extent practicable and consistent with statutory requirements, the acquisition plan shall prescribe that award will be made on a competitive basis after giving full consideration to all sources (including sources that partner or subcontract with public or private sector repair activities). [FR Doc. 2010–3713 Filed 2–23–10; 8:45 am] BILLING CODE 5001–08–P E:\FR\FM\24FER1.SGM 24FER1

Agencies

[Federal Register Volume 75, Number 36 (Wednesday, February 24, 2010)]
[Rules and Regulations]
[Pages 8272-8273]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3713]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 207

[DFARS Case 2009-D014]
RIN 0750-AG61


Defense Federal Acquisition Regulation Supplement; Acquisition 
Strategies To Ensure Competition Throughout the Life Cycle of Major 
Defense Acquisition Programs

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule with request for comments.

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

SUMMARY: DoD is issuing an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement the Weapon 
Systems Acquisition Reform Act of 2009, section 202, Acquisition 
Strategies to Ensure Competition throughout the Lifecycle of Major 
Defense Acquisition Programs.

DATES: Effective Date: February 24, 2010.
    Comment Date: Comments on this interim rule should be submitted in 
writing to the address shown below on or before April 26, 2010, to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2009-D014, 
using any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: dfars@osd.mil. Include DFARS Case 2009-D014 in the subject 
line of the message.
    Fax: 703-602-0350.
    Mail: Defense Acquisition Regulations System, Attn: Ms. Meredith 
Murphy, OUSD (AT&L) DPAP (DARS), 3060 Defense Pentagon, Room 3B855, 
Washington, DC 20301-3060.
    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. Meredith Murphy, 703-602-1302.

SUPPLEMENTARY INFORMATION:

A. Background

    On May 22, 2009, The Weapon Systems Acquisition Reform Act (Pub. L. 
111-23) was enacted to improve the organization and procedures of DoD 
for the acquisition of major weapon systems. This law establishes new 
oversight entities within DoD, as well as new and varied weapon system 
acquisition and management reporting requirements.
    Section 202 directs the Secretary of Defense (SECDEF) to ensure 
that the acquisition strategy for each MDAP includes: (1) Measures to 
ensure competition at both the prime contract and subcontract level of 
the MDAP throughout its life cycle as a means to improve contractor 
performance; and (2) adequate documentation of the rationale for 
selection of the

[[Page 8273]]

subcontractor tier or tiers. It also outlines measures to ensure such 
competition. Furthermore, it requires the SECDEF: (1) To take specified 
actions to ensure fair and objective ``make-buy'' decisions by prime 
contractors on MDAPs; and (2) whenever a decision regarding the source 
of repair results in a plan to award a contract for performance of 
maintenance and sustainment of a major weapon system, to ensure that 
such contract is awarded on a competitive basis with full consideration 
of all sources.

B. Regulatory Flexibility Act

    DoD does not expect this interim 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 change is to internal Government operating procedures. 
Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D014) in 
correspondence.

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.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD) that urgent and compelling reasons exist to promulgate 
this interim rule without prior opportunity for public comments. This 
action is necessary because section 202 of the Weapon Systems 
Acquisition Reform Act of 2009 became effective upon enactment on May 
22, 2009. However, pursuant to 41 U.S.C. 418b, DoD will consider public 
comments received in response to this interim rule in the formation of 
the final rule.

List of Subjects in 48 CFR Part 207

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR part 207 is amended as follows:
0
1. The authority citation for 48 CFR part 207 continues to read as 
follows:

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

PART 207--ACQUISITION PLANNING

0
2. Section 207.106 is amended by adding a new paragraph (S-72) to read 
as follows:


207.106  Additional requirements for major systems.

* * * * *
    (S-72)(1) In accordance with section 202 of the Weapon Systems 
Acquisition Reform Act of 2009 (Pub. L. 111-23), acquisition plans for 
major defense acquisition programs as defined in 10 U.S.C. 2430, shall 
include measures that--
    (i) Ensure competition, or the option of competition, at both the 
prime contract level and subcontract level (at such tier or tiers as 
are appropriate) throughout the program life cycle as a means to 
improve contractor performance; and
    (ii) Document the rationale for the selection of the appropriate 
subcontract tier or tiers under paragraph (S-72)(1)(i) of this section, 
and the measures which will be employed to ensure competition, or the 
option of competition.
    (2) Measures to ensure competition, or the option of competition, 
may include, but are not limited to, cost-effective measures intended 
to achieve the following:
    (i) Competitive prototyping.
    (ii) Dual-sourcing.
    (iii) Unbundling of contracts.
    (iv) Funding of next-generation prototype systems or subsystems.
    (v) Use of modular, open architectures to enable competition for 
upgrades.
    (vi) Use of build-to-print approaches to enable production through 
multiple sources.
    (vii) Acquisition of complete technical data packages.
    (viii) Periodic competitions for subsystem upgrades.
    (ix) Licensing of additional suppliers.
    (x) Periodic system or program reviews to address long-term 
competitive effects of program decisions.
    (3) In order to ensure fair and objective ``make-or-buy'' decisions 
by prime contractors, acquisition strategies and resultant 
solicitations and contracts shall--
    (i) Require prime contractors to give full and fair consideration 
to qualified sources other than the prime contractor for the 
development or construction of major subsystems and components of major 
weapon systems;
    (ii) Provide for Government surveillance of the process by which 
prime contractors consider such sources and determine whether to 
conduct such development or construction in-house or through a 
subcontract; and
    (iii) Provide for the assessment of the extent to which the prime 
contractor has given full and fair consideration to qualified sources 
in sourcing decisions as a part of past performance evaluations.
    (4) Whenever a source-of-repair decision results in a plan to award 
a contract for the performance of maintenance and sustainment services 
on a major weapon system, to the maximum extent practicable and 
consistent with statutory requirements, the acquisition plan shall 
prescribe that award will be made on a competitive basis after giving 
full consideration to all sources (including sources that partner or 
subcontract with public or private sector repair activities).

[FR Doc. 2010-3713 Filed 2-23-10; 8:45 am]
BILLING CODE 5001-08-P