Defense Federal Acquisition Regulation Supplement; Limitations on Procurements With Non-Defense Agencies (DFARS Case 2009-D027), 32639-32640 [2010-13525]

Download as PDF 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 32640 Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Rules and Regulations government operations and procedures. The interim 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–D027) in correspondence. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the DFARS do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq. E. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the statute became effective upon enactment, and it is imperative that DoD contracting officers be aware of the limitations on interagency procurements and the circumstances under which certain programs need not be delayed by such limitations. 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. List of Subjects in 48 CFR Part 217 Government procurement. Fiscal Year 2005 (Pub. L. 108–375), section 801 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110–181), and section 806 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111–84); and * * * * * ■ 3. Section 217.7801 is amended by adding the following definition in appropriate alphabetical order: (DFARS) to reflect a determination of the Secretary of Defense that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of articles, materials, and supplies produced or manufactured in Finland. DATES: Effective Date: June 8, 2010. FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, 703–602–0328. SUPPLEMENTARY INFORMATION: 217.7801 A. Background Definitions. * * * * * Non-DoD agency that is an element of the intelligence community means the Office of the Director of National Intelligence; the Central Intelligence Agency; the intelligence elements of the Federal Bureau of Investigation; the intelligence elements of the Department of Energy; the Bureau of Intelligence and Research of the Department of State; the Office of Intelligence and Analysis of the Department of the Treasury; and the elements of the Department of Homeland Security concerned with the analysis of intelligence information, including the Office of Intelligence of the Coast Guard. ■ 4. Section 217.7802 is amended by adding paragraph (a)(3) to read as follows: 217.7802 Policy. (a) * * * (3) The limitation in paragraph (a) of this section does not apply to contracts entered into by a non-DoD agency that is an element of the intelligence community for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. * * * * * [FR Doc. 2010–13525 filed 6–7–10; 8:45 am] BILLING CODE 5001–08–P DEPARTMENT OF DEFENSE Ynette R. Shelkin, Editor, Defense Acquisition Regulations System. Defense Acquisition Regulations System Therefore, 48 CFR part 217 is amended as follows: 48 CFR Part 225 ■ PART 217—SPECIAL CONTRACTING METHODS 1. The authority citation for 48 CFR part 217 continues to read as follows: emcdonald on DSK2BSOYB1PROD with RULES2 ■ Authority: 41 U.S.C. 421 and 48 CFR chapter 1. 2. Section 217.7800 is amended by revising paragraph (a) to read as follows: ■ 217.7800 Scope of subpart. * * * * * (a) Implements section 854 of the National Defense Authorization Act for VerDate Mar<15>2010 17:31 Jun 07, 2010 Jkt 220001 [DFARS Case 2009–D022] Defense Federal Acquisition Regulation Supplement; Finland— Public Interest Exception to the Buy American Act AGENCY: Defense Acquisition Regulations System; Department of Defense (DoD). ACTION: Final rule. SUMMARY: DoD is issuing this final rule amending the Defense Federal Acquisition Regulation Supplement PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 A reciprocal defense procurement memorandum of understanding (RDP MOU) between the government of Finland and the Government of the United States has been in effect since 1991. The governments have negotiated and concluded a new RDP MOU to provide an updated basis for continued cooperation in defense procurement. The RDP MOU provides that, in relation to defense procurement, each country will accord to the industries of the other country treatment no less favorable than that accorded to its own industries, to the extent consistent with its laws, regulations, and international obligations. The reciprocal opportunities that the RDP MOU affords to the governments and their defense industries enhances mutual military readiness and promotes standardization and interoperability of equipment between the armed forces of the two countries. Therefore, DoD has made a blanket determination that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of articles, materials, and supplies produced or manufactured in Finland. DoD is issuing this rule as a final rule because this rule does not have a significant effect beyond the internal operating procedures of DoD and does not have a significant cost or administrative impact on contractors or offerors. Therefore, public comment is not required in accordance with 41 U.S.C. 418b(a). ‘‘Qualifying country’’ is defined at 225.003(10). The status as a qualifying country entitles these countries to various benefits, both as a matter of DoD policy and as legislated by Congress. The evaluation procedures at DFARS subpart 225.5 treat all qualifying country end products equally. Finland is a qualifying country, as listed at 225.003(10), entitled to all these benefits. However, at DFARS 225.872–1, the qualifying countries are divided into two lists. Most are listed in paragraph (a), but a few are listed in paragraph (b). For the countries in paragraph (a), DoD has already made a blanket E:\FR\FM\08JNR2.SGM 08JNR2

Agencies

[Federal Register Volume 75, Number 109 (Tuesday, June 8, 2010)]
[Rules and Regulations]
[Pages 32639-32640]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13525]



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



DEPARTMENT OF DEFENSE



Defense Acquisition Regulations System



48 CFR Part 217



RIN 0750-AG67




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:

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

Follow the instructions for submitting comments.

    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2009-D027 in the 

subject line of the message.

    [cir] Fax: (703) 602-0350.

    [cir] 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: 



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 non-DoD 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



[[Page 32640]]



government operations and procedures. The interim 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-D027) in 

correspondence.



D. Paperwork Reduction Act



    The Paperwork Reduction Act does not apply because the changes to 

the DFARS do not impose information collection requirements that 

require the approval of the Office of Management and Budget under 44 

U.S.C. 3501, et seq.



E. Determination To Issue an Interim Rule



    A determination has been made under the authority of the Secretary 

of Defense that urgent and compelling reasons exist to promulgate this 

interim rule without prior opportunity for public comment. This action 

is necessary because the statute became effective upon enactment, and 

it is imperative that DoD contracting officers be aware of the 

limitations on interagency procurements and the circumstances under 

which certain programs need not be delayed by such limitations. 

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.



List of Subjects in 48 CFR Part 217



    Government procurement.



Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.



0

Therefore, 48 CFR part 217 is amended as follows:



PART 217--SPECIAL CONTRACTING METHODS



0

1. The authority citation for 48 CFR part 217 continues to read as 

follows:



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



0

2. Section 217.7800 is amended by revising paragraph (a) to read as 

follows:





217.7800  Scope of subpart.



* * * * *

    (a) Implements section 854 of the National Defense Authorization 

Act for Fiscal Year 2005 (Pub. L. 108-375), section 801 of the National 

Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), and 

section 806 of the National Defense Authorization Act for Fiscal Year 

2010 (Pub. L. 111-84); and

* * * * *



0

3. Section 217.7801 is amended by adding the following definition in 

appropriate alphabetical order:





217.7801  Definitions.



* * * * *



Non-DoD agency that is an element of the intelligence community means 

the Office of the Director of National Intelligence; the Central 

Intelligence Agency; the intelligence elements of the Federal Bureau of 

Investigation; the intelligence elements of the Department of Energy; 

the Bureau of Intelligence and Research of the Department of State; the 

Office of Intelligence and Analysis of the Department of the Treasury; 

and the elements of the Department of Homeland Security concerned with 

the analysis of intelligence information, including the Office of 

Intelligence of the Coast Guard.



0

4. Section 217.7802 is amended by adding paragraph (a)(3) to read as 

follows:





217.7802  Policy.



    (a) * * *

    (3) The limitation in paragraph (a) of this section does not apply 

to contracts entered into by a non-DoD agency that is an element of the 

intelligence community for the performance of a joint program conducted 

to meet the needs of DoD and the non-DoD agency.

* * * * *

[FR Doc. 2010-13525 filed 6-7-10; 8:45 am]

BILLING CODE 5001-08-P