Defense Federal Acquisition Regulation Supplement; Contract Authority for Advanced Component Development or Prototype Units (DFARS Case 2009-D034), 32638-32639 [2010-13524]

Download as PDF 32638 Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Rules and Regulations Authority: 41 U.S.C. 421 and 48 CFR chapter 1. 225.1101 [Amended] 2. Section 225.1101 is amended in paragraph (11)(i) introductory text by removing ‘‘$194,000’’ and adding in its place ‘‘$203,000’’; and in paragraphs (11)(i)(A) and (11)(i)(B) by removing ‘‘$67,826’’ and adding in its place ‘‘$70,079’’. ■ 225.7503 [Amended] 3. Section 225.7503 is amended in paragraph (a) by removing ‘‘$7,443,000’’ and adding in its place ‘‘$7,804,000’’; and in paragraph (b) by removing ‘‘$7,443,000’’ and adding in its place ‘‘$7,804,000’’, and by removing ‘‘$8,817,449’’ and adding in its place ‘‘$9,110,318’’. ■ [FR Doc. 2010–13523 Filed 6–7–10; 8:45 am] BILLING CODE 5001–08–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 217 and 234 Defense Federal Acquisition Regulation Supplement; Contract Authority for Advanced Component Development or Prototype Units (DFARS Case 2009–D034) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Interim rule with request for comments. emcdonald on DSK2BSOYB1PROD with RULES2 AGENCY: SUMMARY: DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 819 of the National Defense Authorization Act for Fiscal Year 2010. Section 819 places limitations on certain types of line items and contract options that may be included in contracts initially awarded pursuant to competitive solicitations. When the prohibition applies, it limits the dollar value, period of performance, and time for exercise of such contract line items or contract options. DATES: Effective Date: June 8, 2010. Comment Date: Comments on the interim rule should be submitted in writing to the address shown below on or before August 9, 2010, to be considered in the formation of the final rule. ADDRESSES: Submit comments identified by DFARS Case 2009–D034, using any of the following methods: VerDate Mar<15>2010 17:31 Jun 07, 2010 Jkt 220001 Æ Federal eRulemaking Portal: http: //www.regulations.gov. Follow the instructions for submitting comments. Æ E-mail: dfars@osd.mil. Include DFARS Case 2009–D034 in the subject line of the message. Æ Fax: 703–602–0350. Æ Mail: Defense Acquisition Regulations System, Attn: Ms. Meredith Murphy, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC 20301–3060. Comments received generally will be posted without change to https:// www.regulations.gov, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, 703–602–1302. SUPPLEMENTARY INFORMATION: A. Background This DFARS case implements section 819 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84, enacted October 28, 2009). Section 819 is entitled ‘‘Contract Authority for Advanced Component Development or Prototype Units.’’ Section 819 is intended to prevent a contract for new technology that is initially awarded as a result of competition from becoming a noncompetitive effort for the development of advanced components or the procurement of prototype units. To do so, section 819 places limitations on the (a) Dollar value, (b) period of performance, and (c) time for exercise of contract line items or contract options for advanced component development or procurement of prototype items. Specifically, the contract line item or contract option must be limited to the minimal amount of initial or additional prototype items that will allow for timely competitive solicitation and award of a follow-on development or production contract for those items. The term of the contract line item or contract option cannot be for a period longer than 12 months, and the dollar value of the work to be performed pursuant to the contract line item or contract option may not exceed the lesser of the amount that is three times the dollar value of the work previously performed under the contract or $20 million. Because the coverage is most likely to apply to major systems acquisitions, it has been added as a new DFARS subsection 234.005–1, entitled ‘‘Competition.’’ However, because the language applies to the exercise and content of certain contract options, a reference to 234.005–1 has been added to DFARS 217.202, entitled ‘‘Use of Options.’’ This is not a significant regulatory action and, therefore, is not subject to PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. B. Regulatory Flexibility Act DoD does not expect that this interim rule will 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 does not impose any additional requirements on small businesses. 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–D034) in correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the interim rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C., 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 circumstances exist to promulgate this interim rule without prior opportunity for public comments. This action is necessary because section 819 of the National Defense Authorization Act for Fiscal Year 2010 became effective upon enactment on October 28, 2009. Section 819 places limitations on certain types of line items and contract options that may be included in contracts initially awarded pursuant to competitive solicitations. In order to prevent a contract for new technology that is initially awarded as a result of competition from becoming a noncompetitive effort for the development of advanced components or procurement of prototype units, it is necessary to publish this rule as an interim rule prior to affording the public an opportunity to comment. However, pursuant to 41 U.S.C. 418b and FAR 1.501–3, DoD will consider public comments received in response to this interim rule in the formation of the final rule. E:\FR\FM\08JNR2.SGM 08JNR2 Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Rules and Regulations List of Subjects in 48 CFR Parts 217 and 234 Government procurement. Ynette R. Shelkin, Editor, Defense Acquisition Regulations System. (B) $20 million. (2) A contract line item or contract option may not be exercised under this authority after September 30, 2014. [FR Doc. 2010–13524 Filed 6–7–10; 8:45 am] BILLING CODE 5001–08–P Therefore, 48 CFR parts 217 and 234 are amended as follows: ■ 1. The authority citation for 48 CFR parts 217 and 234 continues to read as follows: ■ DEPARTMENT OF DEFENSE Defense Acquisition Regulations System Authority: 41 U.S.C. 421 and 48 CFR chapter 1. 48 CFR Part 217 PART 217—SPECIAL CONTRACTING METHODS RIN 0750–AG67 2. Section 217.202 is revised as follows: ■ 217.202 Use of options. (1) See PGI 217.202 for guidance on the use of options. (2) See 234.005–1 for limitations on the use of contract options for the provision of advanced component development or prototype of technology developed under the contract or the delivery of initial or additional prototype items. PART 234—MAJOR SYSTEM ACQUISITION 3. Section 234.005–1 is added to read as follows: ■ emcdonald on DSK2BSOYB1PROD with RULES2 234.005–1 Competition. (1) A contract that is initially awarded from the competitive selection of a proposal resulting from a general solicitation may contain a contract line item or contract option for the provision of advanced component development or prototype of technology developed under the contract or the delivery of initial or additional prototype items if the item or a prototype thereof is created as the result of work performed under the contract only when it adheres to the following limitations: (i) The contract line item or contract option shall be limited to the minimal amount of initial or additional prototype items that will allow for timely competitive solicitation and award of a follow-on development or production contract for those items. (ii) The term of the contract line item or contract option shall be for not more than 12 months. (iii) The dollar value of the work to be performed pursuant to the contract line item or contract option shall not exceed the lesser of— (A) The amount that is three times the dollar value of the work previously performed under the contract; or VerDate Mar<15>2010 17:31 Jun 07, 2010 Jkt 220001 Defense Federal Acquisition Regulation Supplement; Limitations on Procurements With Non-Defense Agencies (DFARS Case 2009–D027) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Interim rule with request for comments. SUMMARY: DoD is issuing an interim rule to implement section 806 of the National Defense Authorization Act for Fiscal Year 2010 authorizing the placing of contracts for property and services in excess of the simplified acquisition threshold by certain non-DoD agencies for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. DATES: Effective Date: June 8, 2010. Comment Date: Comments on the interim rule should be submitted in writing to the address shown below on or before August 9, 2010, to be considered in the formation of the final rule. ADDRESSES: Submit comments identified by DFARS Case 2009–D027, 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 2009–D027 in the subject line of the message. Æ Fax: (703) 602–0350. Æ Mail: Defense Acquisition Regulations System, Attn: Meredith Murphy, OUSD(AT&L)DPAP(DARS), 3060 Defense Pentagon, Room 3B855, Washington, DC 20301–3060. Comments received generally will be posted without change to https:// www.regulations.gov, including any personal information provided. FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Telephone 703–602– 1302. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 32639 A. Background Section 854 of the National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108–375) prescribed policy for the acquisition of supplies and services through the use of contracts or orders issued by non-DoD agencies. Section 801(b) of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181) authorized a DoD acquisition official to procure property and services in excess of the simplified acquisition threshold through a nonDoD agency only if: (1) The non-DoD agency agreed to adhere to defense procurement requirements; or (2) the Under Secretary of Defense (AT&L) certified that the procurement is in the best interest of DoD. Section 806 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84) amended the limitations placed on procurements by non-DoD agencies by exempting such procurements that are (a) entered into by a non-DoD agency that is an element of the intelligence community and (b) when the procurement is for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. Section 806 referred to section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)) to identify non-DoD agencies that are an element of the intelligence community. B. Discussion The National Security Act of 1947 defines the term ‘‘intelligence community’’ to include a number of defense and non-defense agencies and portions of such agencies. The definition of ‘‘non-DoD agency that is an element of the intelligence community’’ replicates the statutory list, absent the DoD agencies. DFARS subpart 217.78 is amended by adding the definition at 217.7801 and excluding such agencies from the requirements of 217.7802(a) when the procurement is for performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. This is not a significant regulatory action, and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 604. C. 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 section 806 affects only internal E:\FR\FM\08JNR2.SGM 08JNR2

Agencies

[Federal Register Volume 75, Number 109 (Tuesday, June 8, 2010)]
[Rules and Regulations]
[Pages 32638-32639]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13524]



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



DEPARTMENT OF DEFENSE



Defense Acquisition Regulations System



48 CFR Parts 217 and 234




Defense Federal Acquisition Regulation Supplement; Contract 

Authority for Advanced Component Development or Prototype Units (DFARS 

Case 2009-D034)



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 section 819 of 

the National Defense Authorization Act for Fiscal Year 2010. Section 

819 places limitations on certain types of line items and contract 

options that may be included in contracts initially awarded pursuant to 

competitive solicitations. When the prohibition applies, it limits the 

dollar value, period of performance, and time for exercise of such 

contract line items or contract options.



DATES: Effective Date: June 8, 2010.

    Comment Date: Comments on the interim rule should be submitted in 

writing to the address shown below on or before August 9, 2010, to be 

considered in the formation of the final rule.



ADDRESSES: Submit comments identified by DFARS Case 2009-D034, using 

any of the following methods:

    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 

Follow the instructions for submitting comments.

    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2009-D034 in the 

subject line of the message.

    [cir] Fax: 703-602-0350.

    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 

Meredith Murphy, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense 

Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided.



FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, 703-602-1302.



SUPPLEMENTARY INFORMATION:



A. Background



    This DFARS case implements section 819 of the National Defense 

Authorization Act for Fiscal Year 2010 (Pub. L. 111-84, enacted October 

28, 2009). Section 819 is entitled ``Contract Authority for Advanced 

Component Development or Prototype Units.''

    Section 819 is intended to prevent a contract for new technology 

that is initially awarded as a result of competition from becoming a 

noncompetitive effort for the development of advanced components or the 

procurement of prototype units. To do so, section 819 places 

limitations on the (a) Dollar value, (b) period of performance, and (c) 

time for exercise of contract line items or contract options for 

advanced component development or procurement of prototype items. 

Specifically, the contract line item or contract option must be limited 

to the minimal amount of initial or additional prototype items that 

will allow for timely competitive solicitation and award of a follow-on 

development or production contract for those items. The term of the 

contract line item or contract option cannot be for a period longer 

than 12 months, and the dollar value of the work to be performed 

pursuant to the contract line item or contract option may not exceed 

the lesser of the amount that is three times the dollar value of the 

work previously performed under the contract or $20 million.

    Because the coverage is most likely to apply to major systems 

acquisitions, it has been added as a new DFARS subsection 234.005-1, 

entitled ``Competition.'' However, because the language applies to the 

exercise and content of certain contract options, a reference to 

234.005-1 has been added to DFARS 217.202, entitled ``Use of Options.''

    This is not a significant regulatory action and, therefore, is not 

subject to review under section 6(b) of Executive Order 12866, 

Regulatory Planning and Review, dated September 30, 1993. This rule is 

not a major rule under 5 U.S.C. 804.



B. Regulatory Flexibility Act



    DoD does not expect that this interim rule will 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 does not impose any additional requirements on small 

businesses. 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-D034) in 

correspondence.



C. Paperwork Reduction Act



    The Paperwork Reduction Act does not apply because the interim rule 

does not contain any information collection requirements that require 

the approval of the Office of Management and Budget under 44 U.S.C., 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 circumstances exist to 

promulgate this interim rule without prior opportunity for public 

comments. This action is necessary because section 819 of the National 

Defense Authorization Act for Fiscal Year 2010 became effective upon 

enactment on October 28, 2009. Section 819 places limitations on 

certain types of line items and contract options that may be included 

in contracts initially awarded pursuant to competitive solicitations. 

In order to prevent a contract for new technology that is initially 

awarded as a result of competition from becoming a noncompetitive 

effort for the development of advanced components or procurement of 

prototype units, it is necessary to publish this rule as an interim 

rule prior to affording the public an opportunity to comment. However, 

pursuant to 41 U.S.C. 418b and FAR 1.501-3, DoD will consider public 

comments received in response to this interim rule in the formation of 

the final rule.



[[Page 32639]]



List of Subjects in 48 CFR Parts 217 and 234



    Government procurement.



Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.



0

Therefore, 48 CFR parts 217 and 234 are amended as follows:

0

1. The authority citation for 48 CFR parts 217 and 234 continues to 

read as follows:



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



PART 217--SPECIAL CONTRACTING METHODS



0

2. Section 217.202 is revised as follows:





217.202  Use of options.



    (1) See PGI 217.202 for guidance on the use of options.

    (2) See 234.005-1 for limitations on the use of contract options 

for the provision of advanced component development or prototype of 

technology developed under the contract or the delivery of initial or 

additional prototype items.



PART 234--MAJOR SYSTEM ACQUISITION



0

3. Section 234.005-1 is added to read as follows:





234.005-1  Competition.



    (1) A contract that is initially awarded from the competitive 

selection of a proposal resulting from a general solicitation may 

contain a contract line item or contract option for the provision of 

advanced component development or prototype of technology developed 

under the contract or the delivery of initial or additional prototype 

items if the item or a prototype thereof is created as the result of 

work performed under the contract only when it adheres to the following 

limitations:

    (i) The contract line item or contract option shall be limited to 

the minimal amount of initial or additional prototype items that will 

allow for timely competitive solicitation and award of a follow-on 

development or production contract for those items.

    (ii) The term of the contract line item or contract option shall be 

for not more than 12 months.

    (iii) The dollar value of the work to be performed pursuant to the 

contract line item or contract option shall not exceed the lesser of--

    (A) The amount that is three times the dollar value of the work 

previously performed under the contract; or

    (B) $20 million.

    (2) A contract line item or contract option may not be exercised 

under this authority after September 30, 2014.



[FR Doc. 2010-13524 Filed 6-7-10; 8:45 am]

BILLING CODE 5001-08-P