Federal Acquisition Regulation; Interagency Acquisitions: Compliance by Nondefense Agencies With Defense Procurement Requirements, 69720-69723 [2012-27905]
Download as PDF
<![CDATA[
69720
Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations
(3) The Contractor shall ensure that the
DUNS number is maintained with Dun &
Bradstreet throughout the life of the contract.
The Contractor shall communicate any
change to the DUNS number to the
Contracting Officer within 30 days after the
change, so an appropriate modification can
be issued to update the data on the contract.
A change in the DUNS number does not
necessarily require a novation be
accomplished. Dun & Bradstreet may be
contacted—
(i) Via the internet at https://
fedgov.dnb.com/webform or if the Contractor
does not have internet access, it may call Dun
and Bradstreet at 1–866–705–5711 if located
within the United States; or
(ii) If located outside the United States, by
contacting the local Dun and Bradstreet
office.
(d) Contractors may obtain additional
information on registration and annual
confirmation requirements at https://
www.acquisition.gov.
(End of clause)
[FR Doc. 2012–27904 Filed 11–19–12; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 4 and 17
[FAC 2005–62; FAR Case 2012–010; Item
II; Docket 2012–0010, Sequence 01]
RIN 9000–AM36
Federal Acquisition Regulation;
Interagency Acquisitions: Compliance
by Nondefense Agencies With Defense
Procurement Requirements
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCY:
DoD, GSA, and NASA are
issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to
add new requirements specific to the
acquisition of supplies and services by
nondefense agencies on behalf of the
DoD. This rule implements a section of
the National Defense Authorization Act
for Fiscal Year 2008, with later
amendments.
wreier-aviles on DSK5TPTVN1PROD with
SUMMARY:
Effective date: November 20,
2012.
Comment date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
January 22, 2013 to be considered in the
formation of a final rule.
DATES:
VerDate Mar<15>2010
15:15 Nov 19, 2012
Jkt 229001
Submit comments
identified by FAC 2005–62, FAR Case
2012–010, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by searching for
‘‘FAR Case 2012–010’’. Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘FAR Case 2012–010.’’ Follow the
instructions provided at the ‘‘Submit a
Comment’’ screen. Please include your
name, company name (if any), and
‘‘FAR Case 2012–010’’ on your attached
document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MCVB), ATTN: Hada Flowers, 1275
First Street NE., 7th Floor, Washington,
DC 20417.
Instructions: Please submit comments
only and cite FAC 2005–62, FAR Case
2012–010 in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Patricia Corrigan, Procurement Analyst,
at 202–208–1963 for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at 202–501–
4755. Please cite FAC 2005–62, FAR
Case 2012–010.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Background
DoD, GSA, and NASA are publishing
this interim rule amending the FAR to
implement the requirements of section
801 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2008 (Pub. L. 110–181), as
amended, (10 U.S.C. 2304 note).
Section 801 of the NDAA for FY 2008,
titled ‘‘Internal Controls for
Procurement on Behalf of the
Department of Defense by Certain
Nondefense Agencies,’’ defines in
general terms the ‘‘procurement
policies, procedures, and internal
controls’’ that constitute compliance
with defense procurement requirements
by a nondefense agency when it
procures supplies and services on behalf
of the DoD. Section 801(b) states, in
part, that unless waived, a DoD
acquisition official may place an order,
make a purchase, or otherwise procure
property or services for DoD in excess
of the simplified acquisition threshold
through a nondefense agency only if the
nondefense agency conducting the
acquisition on DoD’s behalf has certified
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
that it will comply with defense
procurement requirements for that fiscal
year.
Section 804 of the Duncan Hunter
NDAA for FY 2009 (Pub. L. 110–417)
amended the list of covered nondefense
agencies established in previous
NDAAs, and established deadlines for
reviews of covered nondefense agencies.
(The term ‘‘covered nondefense agency’’
is included in the definition of
nondefense agencies of section 801 of
the NDAA for FY 2008.)
Section 806 of the NDAA for FY 2010
(Pub. L. 111–84), titled ‘‘Treatment of
Nondefense Agency Procurements
Under Joint Programs with Intelligence
Community,’’ amended section 801(b) of
the NDAA for FY 2008 by authorizing
exclusions from section 801 internal
control limitations for contracts entered
into under joint programs for DoD and
non-DoD elements of the intelligence
community.
Section 817 of the NDAA for FY 2012
(Pub. L. 112–81), titled ‘‘Compliance
with Defense Procurement
Requirements for Purposes of Internal
Controls of Nondefense Agencies for
Procurements of Behalf of the
Department of Defense,’’ amended
section 801(d) of the NDAA for FY 2008
(10 U.S.C. 2304 note) to provide
clarifying language that identifies the
types of laws and regulations with
which nondefense departments and
agencies must comply when procuring
supplies and services on behalf of DoD.
Specifically, section 817 clarifies that
the nondefense agency certification of
‘‘compliance with defense procurement
requirements’’ for a given fiscal year
means compliance with (1) the FAR and
other laws and regulations that apply to
procurements of property and services
by Federal agencies, and (2) laws and
regulations (including DoD financial
management regulations) that apply to
procurements of property and services
made by DoD through other Federal
agencies.
This interim rule makes the following
changes:
• Clarifies FAR 4.603(c) regarding the
allocation of socioeconomic credit to the
requesting agency for assisted
acquisitions.
• Adds to FAR 17.500(a) a crossreference to the new FAR subpart 17.7
for additional requirements for
nondefense agencies when acquiring
supplies and services on behalf of DoD;
• Adds to FAR 17.502–1(b)(1)(i) a
requirement for written confirmation by
the requesting agency to the servicing
agency in the event there are no agency
unique requirements beyond the FAR
that apply to an assisted acquisition.
E:\FR\FM\20NOR2.SGM
20NOR2
Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations
• Cross-references new FAR subpart
17.7, Interagency Acquisitions:
Acquisitions by Nondefense Agencies
on Behalf of the Department of Defense,
at 17.502–1(b)(1)(i) related to assisted
acquisitions.
• Creates a new FAR subpart FAR
17.7 applicable to the acquisition of
supplies and services by nondefense
agencies on behalf of DoD.
• Creates a new FAR section 17.700
identifying the scope of the subpart.
• Creates a new FAR section 17.701
providing definitions specific to subpart
17.7.
• Creates a new FAR section 17.702
establishing the subpart’s applicability
to all acquisitions made by nondefense
agencies on behalf of DoD except for
contracts for joint projects with DoD
entered into by a nondefense agency
that is an element of the intelligence
community.
• Creates a new FAR section 17.703,
which establishes the policy related to
internal controls and compliance
certification under which nondefense
agencies may procure supplies and
services on behalf of DoD and identifies
DoD acquisition official responsibilities
when making acquisitions on behalf of
DoD.
wreier-aviles on DSK5TPTVN1PROD with
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of E.O. 12866,
Regulatory Planning and Review, dated
September 30, 1993. This rule is not a
major rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do 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. Nevertheless, an Initial
Regulatory Flexibility Analysis (IRFA)
has been prepared and is summarized as
follows.
Section 801 of the NDAA for FY 2008 (Pub.
L. 110–181), section 806 of the NDAA for FY
2010 (Pub. L. 111–84), and section 817 of the
NDAA for FY 2012 (Pub. L. 112–81) address
VerDate Mar<15>2010
15:15 Nov 19, 2012
Jkt 229001
requirements specific to the acquisition of
supplies and services by nondefense agencies
on behalf of DoD, and are, therefore, internal
to the Government. However, this case also
adds a clarification at FAR 4.603(c), restating
existing Office of Federal Procurement Policy
(OFPP) and Federal Procurement Data
System (FPDS) policy regarding the
allocation of socioeconomic credit for
interagency acquisitions. Although DoD,
GSA, and NASA do not expect the
clarification to have a direct economic
impact on a substantial number of small
entities, there is the possibility that the
regulatory clarification may improve the
accuracy of FPDS data submissions related to
the allocation of socioeconomic credit to
agencies for contracts and orders awarded to
a substantial number of small entities.
Improved data accuracy can have a positive
impact on agencies’ annual small business
goals.
The Regulatory Secretariat has
submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat. DoD, GSA, and
NASA invite comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by this rule consistent
with 5 U.S.C. 610. Interested parties
must submit such comments separately
and should cite 5 U.S.C. 610 (FAC
2005–62, FAR Case 2012–010) in
correspondence.
IV. Paperwork Reduction Act
The interim rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
Chapter 35).
V. Determination To Issue an Interim
Rule
Pursuant to the Office of Federal
Procurement Policy (OFPP)
Reauthorization Act, the Secretary of
Defense, the Administrator of General
Services, and the Administrator of
NASA have determined that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because the NDAA
for FY 2012 (Pub. L. 112–81) was
enacted on December 31, 2011, and was
effective upon enactment. Recognizing
this, the FAR Principals opened FAR
Case 2012–010 on January 19, 2012.
Section 817 of the NDAA for FY 2012
amended section 801(d) of the NDAA
for FY 2008 (10 U.S.C. 2304 note) to
provide necessary clarifying language
PO 00000
Frm 00009
Fmt 4701
Sfmt 4700
69721
that identifies the types of laws and
regulations with which nondefense
departments and agencies must comply
when procuring supplies and services
on behalf of DoD. Specifically, section
817 clarifies that the nondefense agency
certification of ‘‘compliance with
defense procurement requirements’’ for
a given fiscal year means compliance
with (1) the FAR and other laws and
regulations that apply to procurements
of property and services by Federal
agencies, and (2) laws and regulations
(including DoD financial management
regulations) that apply to procurements
of property and services made by DoD
through other Federal agencies. If this
rule, which also informs nondefense
agencies regarding their responsibilities
when buying on behalf of DoD, is not
implemented as an interim rule, it will
negatively impact the accuracy and
completeness of nondefense agency
certifications for fiscal year 2013.
Every effort has been made to process
this FAR requirement in an expeditious
manner. Processing this rule as an
interim rule, with an immediate
effective date, will ensure that
nondefense agencies conducting
acquisitions on behalf of DoD are fully
informed of DoD expectations and their
responsibilities when nondefense
agency senior management completes
the statutorily-mandated certifications
for fiscal year 2013. This requirement
does not directly impact the public and
is purely an administrative FAR change
that affects Government agencies that
conduct acquisitions on behalf of DoD.
However, pursuant to 41 U.S.C. 1707
and FAR 1.501–3(b), DoD, GSA, and
NASA will consider public comments
received in response to this interim rule
in the formation of the final rule.
List of Subjects in 48 CFR Parts 4 and
17
Government procurement.
Dated: November 9, 2012.
Laura Auletta,
Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 4 and 17 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 4 and 17 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
PART 4—ADMINISTRATIVE MATTERS
2. Amend section 4.603 by adding two
sentences to the end of paragraph (c) to
read as follows:
■
E:\FR\FM\20NOR2.SGM
20NOR2
69722
4.603
Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations
Policy.
*
*
*
*
*
(c) * * * For assisted acquisitions,
the requesting agency will receive
socioeconomic credit for meeting
agency small business goals, where
applicable. Requesting agencies shall
provide the appropriate agency/bureau
component code as part of the written
interagency agreement between the
requesting and servicing agencies (see
17.502–1(b)(1)).
*
*
*
*
*
3. Amend section 17.500 by adding a
new sentence to the end of paragraph (a)
to read as follows:
■
Scope of subpart.
(a) * * * In addition to complying
with the interagency acquisition policy
and procedures in this subpart,
nondefense agencies acquiring supplies
and services on behalf of the
Department of Defense shall also
comply with the policy and procedures
at subpart 17.7.
*
*
*
*
*
■ 4. Amend section 17.502–1 by
revising paragraph (b)(1)(i) to read as
follows:
17.502–1
General.
wreier-aviles on DSK5TPTVN1PROD with
*
*
*
*
*
(b) * * *
(1) * * *
(i) Prior to the issuance of a
solicitation, the servicing agency and
the requesting agency shall both sign a
written interagency agreement that
establishes the general terms and
conditions governing the relationship
between the parties, including roles and
responsibilities for acquisition planning,
contract execution, and administration
and management of the contract(s) or
order(s). The requesting agency shall
provide to the servicing agency any
unique terms, conditions, and
applicable agency-specific statutes,
regulations, directives, and other
applicable requirements for
incorporation into the order or contract.
In the event there are no agency unique
requirements beyond the FAR, the
requesting agency shall so inform the
servicing agency contracting officer in
writing. For acquisitions on behalf of
the Department of Defense, also see
subpart 17.7. For patent rights, see
27.304–2. In preparing interagency
agreements to support assisted
acquisitions, agencies should review the
Office of Federal Procurement Policy
guidance, Interagency Acquisitions,
available at https://www.whitehouse.gov/
VerDate Mar<15>2010
15:15 Nov 19, 2012
Jkt 229001
Subpart 17.7—Interagency Acquisitions:
Acquisitions by Nondefense Agencies on
Behalf of the Department of Defense
Sec.
17.700 Scope of subpart.
17.701 Definitions.
17.702 Applicability.
17.703 Policy.
an element of the intelligence
community.
17.702
Subpart 17.7—Interagency
Acquisitions: Acquisitions by
Nondefense Agencies on Behalf of the
Department of Defense
17.700
Scope of subpart.
(a) Compliance with this subpart is in
addition to the policies and procedures
for interagency acquisitions set forth in
subpart 17.5. This subpart prescribes
policies and procedures specific to
acquisitions of supplies and services by
nondefense agencies on behalf of the
Department of Defense (DoD).
(b) This subpart implements Public
Law 110–181, section 801, as amended
(10 U.S.C. 2304 Note).
17.701
Definitions.
As used in this subpart—
Department of Defense (DoD)
acquisition official means—
(1) A DoD contracting officer; or
(2) Any other DoD official authorized
to approve a direct acquisition or an
assisted acquisition on behalf of DoD.
Nondefense agency means any
department or agency of the Federal
Government other than the Department
of Defense.
Nondefense agency that is an element
of the intelligence community means the
agencies identified in 50 U.S.C. 401a(4),
which include the—
(1) Office of the Director of National
Intelligence;
(2) Central Intelligence Agency;
(3) Intelligence elements of the
Federal Bureau of Investigation,
Department of Energy, and Drug
Enforcement Agency;
(4) Bureau of Intelligence and
Research of the Department of State;
(5) Office of Intelligence and Analysis
of the Department of the Treasury;
(6) The Office of Intelligence and
Analysis of the Department of
Homeland Security and the Office of
Intelligence of the Coast Guard; and
(7) Such other elements of any
department or agency as have been
designated by the President, or
designated jointly by the Director of
National Intelligence and the head of
the department or agency concerned, as
PO 00000
Frm 00010
Fmt 4701
Sfmt 4700
Applicability.
This subpart applies to all
acquisitions made by nondefense
agencies on behalf of DoD. It does not
apply to contracts entered into by a
nondefense 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 nondefense agency.
17.703
PART 17—SPECIAL CONTRACTING
METHODS
17.500
omb/assets/procurement/
iac_revised.pdf.
*
*
*
*
*
■ 5. Add Subpart 17.7 to read as
follows:
Policy.
(a) A DoD acquisition official may
request a nondefense agency to conduct
an acquisition on behalf of DoD in
excess of the simplified acquisition
threshold only if the head of the
nondefense agency conducting the
acquisition on DoD’s behalf has certified
that the agency will comply with
defense procurement requirements for
that fiscal year except when waived in
accordance with paragraph (e) of this
section.
(b) A nondefense agency is compliant
with defense procurement requirements
if the procurement policies, procedures,
and internal controls of the nondefense
agency applicable to the procurement of
supplies and services on behalf of DoD,
and the manner in which they are
administered, are adequate to ensure the
compliance of the nondefense
department or agency with—
(1) The Federal Acquisition
Regulation and other laws and
regulations that apply to procurements
of supplies and services by Federal
agencies; and
(2) Laws and regulations that apply to
procurements of supplies and services
made by DoD through other Federal
agencies, including DoD financial
management regulations, the Defense
Federal Acquisition Regulation
Supplement (DFARS), and the DFARS
Procedures, Guidance, and Information
(PGI). (The DFARS and PGIs are
accessible at: https://www.acq.osd.mil/
dpap/).
(c) Within 30 days of the beginning of
each fiscal year, submit nondefense
agency certifications of compliance to
the Director, Defense Procurement and
Acquisition Policy, Department of
Defense, 3060 Defense Pentagon,
Washington DC 20301–3060.
(d) The DoD acquisition official, as
defined at 17.701, shall provide to the
servicing nondefense agency contracting
officer any DoD-unique terms,
conditions, other related statutes,
regulations, directives, and other
applicable requirements for
incorporation into the order or contract.
In the event there are no DoD-unique
E:\FR\FM\20NOR2.SGM
20NOR2
Federal Register / Vol. 77, No. 224 / Tuesday, November 20, 2012 / Rules and Regulations
requirements beyond the FAR, the DoD
acquisition official shall so inform the
servicing nondefense agency contracting
officer in writing. Nondefense agency
contracting officers are responsible for
ensuring support provided in response
to DoD’s request complies with
paragraph (b) of this section.
(e) Waiver. The limitation in
paragraph (a) of this section shall not
apply to the acquisition of supplies and
services on behalf of DoD by a
nondefense agency during any fiscal
year for which the Under Secretary of
Defense for Acquisition, Technology,
and Logistics has determined in writing
that it is necessary in the interest of DoD
to acquire supplies and services through
the nondefense agency during the fiscal
year. The written determination shall
identify the acquisition categories to
which the waiver applies.
(f) Nondefense agency certifications,
waivers, and additional information are
available at https://www.acq.osd.mil/
dpap/cpic/cp/
interagency_acquisition.html.
[FR Doc. 2012–27905 Filed 11–19–12; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005–62; FAR Case 2012–027; Item
III; Docket 2012–0027, Sequence 01]
RIN 9000–AM43
Federal Acquisition Regulation; Free
Trade Agreement—Panama
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCIES:
DoD, GSA, and NASA are
issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to
implement the United States—Panama
Trade Promotion Agreement. This Trade
Promotion Agreement is a free trade
agreement that provides for mutually
non-discriminatory treatment of eligible
products and services from Panama.
DATES: Effective date: November 20,
2012.
Comment date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
wreier-aviles on DSK5TPTVN1PROD with
SUMMARY:
VerDate Mar<15>2010
15:15 Nov 19, 2012
Jkt 229001
January 22, 2013 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–62, FAR Case
2012–027, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
searching for ‘‘FAR Case 2012–027’’.
Select the link ‘‘Submit a Comment’’
that corresponds with ‘‘FAR Case 2012–
027.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘FAR Case 2012–
027’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1275
First Street NE., 7th Floor, Washington,
DC 20417.
Instructions: Please submit comments
only and cite FAC 2005–62, FAR Case
2012–027, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Cecelia L. Davis, Procurement Analyst,
at 202–219–0202, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at 202–501–
4755. Please cite FAC 2005–62, FAR
Case 2012–027.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are issuing an
interim rule amending FAR part 25 and
the corresponding provisions and
clauses in part 52 to implement the
United States—Panama Trade
Promotion Agreement Implementation
Act (Pub. L. 112–43) (19 U.S.C. 3805
note).
This Trade Promotion Agreement is
designated in the FAR as the Panama
Free Trade Agreement (FTA). This FTA
provides for—
• Waiver of the applicability of the
Buy American statute (41 U.S.C. chapter
83) for some foreign supplies and
construction materials from Panama;
and
• Applicability of specified
procurement procedures designed to
ensure fairness in the acquisition of
supplies and services (see FAR 25.408).
II. Discussion and Analysis
This interim rule adds Panama to the
definition of ‘‘Free Trade Agreement
country’’ in multiple locations in the
FAR.
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
69723
The Panama FTA covers acquisitions
of supplies and services equal to or
exceeding $202,000. The threshold for
the Panama FTA is $7,777,000 for
construction contracts. The Panama
FTA threshold for supplies and services
is higher than the threshold for supplies
and services for most of the FTAs
($77,494), and equals the Bahrain,
Morocco, Oman, and Peru FTA
thresholds for supplies and services
($202,000). The excluded services for
the Panama FTA are the same as for the
Bahrain FTA, Dominican Republic—
Central American FTA, Colombia FTA,
Chile FTA, NAFTA, Oman FTA, and
Peru FTA.
III. Executive Order 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Regulatory Flexibility Act
The Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration do 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. Although the
rule now opens up Government
procurement to the goods and services
of Panama, DoD, GSA, and NASA do
not anticipate any significant economic
impact on U.S. small businesses. The
Department of Defense only applies the
trade agreements to the non-defense
items listed at Defense Federal
Acquisition Regulation Supplement
(DFARS) 225.401–70, and acquisitions
that are set aside or provide other form
of preference for small businesses are
exempt. FAR 19.502–2 states that
acquisitions of supplies or services with
an anticipated dollar value between
$3,000 and $150,000 (with some
exceptions) are automatically reserved
for small business concerns.
E:\FR\FM\20NOR2.SGM
20NOR2
]]>Agencies
[Federal Register Volume 77, Number 224 (Tuesday, November 20, 2012)]
[Rules and Regulations]
[Pages 69720-69723]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27905]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4 and 17
[FAC 2005-62; FAR Case 2012-010; Item II; Docket 2012-0010, Sequence
01]
RIN 9000-AM36
Federal Acquisition Regulation; Interagency Acquisitions:
Compliance by Nondefense Agencies With Defense Procurement Requirements
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to add new requirements specific
to the acquisition of supplies and services by nondefense agencies on
behalf of the DoD. This rule implements a section of the National
Defense Authorization Act for Fiscal Year 2008, with later amendments.
DATES: Effective date: November 20, 2012.
Comment date: Interested parties should submit written comments to
the Regulatory Secretariat on or before January 22, 2013 to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-62, FAR Case 2012-
010, by any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by searching for
``FAR Case 2012-010''. Select the link ``Submit a Comment'' that
corresponds with ``FAR Case 2012-010.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``FAR Case 2012-010'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MCVB), ATTN: Hada Flowers, 1275 First Street NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-62, FAR
Case 2012-010 in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Ms. Patricia Corrigan, Procurement
Analyst, at 202-208-1963 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-62, FAR Case 2012-
010.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are publishing this interim rule amending the
FAR to implement the requirements of section 801 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 (Pub. L.
110-181), as amended, (10 U.S.C. 2304 note).
Section 801 of the NDAA for FY 2008, titled ``Internal Controls for
Procurement on Behalf of the Department of Defense by Certain
Nondefense Agencies,'' defines in general terms the ``procurement
policies, procedures, and internal controls'' that constitute
compliance with defense procurement requirements by a nondefense agency
when it procures supplies and services on behalf of the DoD. Section
801(b) states, in part, that unless waived, a DoD acquisition official
may place an order, make a purchase, or otherwise procure property or
services for DoD in excess of the simplified acquisition threshold
through a nondefense agency only if the nondefense agency conducting
the acquisition on DoD's behalf has certified that it will comply with
defense procurement requirements for that fiscal year.
Section 804 of the Duncan Hunter NDAA for FY 2009 (Pub. L. 110-417)
amended the list of covered nondefense agencies established in previous
NDAAs, and established deadlines for reviews of covered nondefense
agencies. (The term ``covered nondefense agency'' is included in the
definition of nondefense agencies of section 801 of the NDAA for FY
2008.)
Section 806 of the NDAA for FY 2010 (Pub. L. 111-84), titled
``Treatment of Nondefense Agency Procurements Under Joint Programs with
Intelligence Community,'' amended section 801(b) of the NDAA for FY
2008 by authorizing exclusions from section 801 internal control
limitations for contracts entered into under joint programs for DoD and
non-DoD elements of the intelligence community.
Section 817 of the NDAA for FY 2012 (Pub. L. 112-81), titled
``Compliance with Defense Procurement Requirements for Purposes of
Internal Controls of Nondefense Agencies for Procurements of Behalf of
the Department of Defense,'' amended section 801(d) of the NDAA for FY
2008 (10 U.S.C. 2304 note) to provide clarifying language that
identifies the types of laws and regulations with which nondefense
departments and agencies must comply when procuring supplies and
services on behalf of DoD. Specifically, section 817 clarifies that the
nondefense agency certification of ``compliance with defense
procurement requirements'' for a given fiscal year means compliance
with (1) the FAR and other laws and regulations that apply to
procurements of property and services by Federal agencies, and (2) laws
and regulations (including DoD financial management regulations) that
apply to procurements of property and services made by DoD through
other Federal agencies.
This interim rule makes the following changes:
Clarifies FAR 4.603(c) regarding the allocation of
socioeconomic credit to the requesting agency for assisted
acquisitions.
Adds to FAR 17.500(a) a cross-reference to the new FAR
subpart 17.7 for additional requirements for nondefense agencies when
acquiring supplies and services on behalf of DoD;
Adds to FAR 17.502-1(b)(1)(i) a requirement for written
confirmation by the requesting agency to the servicing agency in the
event there are no agency unique requirements beyond the FAR that apply
to an assisted acquisition.
[[Page 69721]]
Cross-references new FAR subpart 17.7, Interagency
Acquisitions: Acquisitions by Nondefense Agencies on Behalf of the
Department of Defense, at 17.502-1(b)(1)(i) related to assisted
acquisitions.
Creates a new FAR subpart FAR 17.7 applicable to the
acquisition of supplies and services by nondefense agencies on behalf
of DoD.
Creates a new FAR section 17.700 identifying the scope of
the subpart.
Creates a new FAR section 17.701 providing definitions
specific to subpart 17.7.
Creates a new FAR section 17.702 establishing the
subpart's applicability to all acquisitions made by nondefense agencies
on behalf of DoD except for contracts for joint projects with DoD
entered into by a nondefense agency that is an element of the
intelligence community.
Creates a new FAR section 17.703, which establishes the
policy related to internal controls and compliance certification under
which nondefense agencies may procure supplies and services on behalf
of DoD and identifies DoD acquisition official responsibilities when
making acquisitions on behalf of DoD.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do 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.
Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) has
been prepared and is summarized as follows.
Section 801 of the NDAA for FY 2008 (Pub. L. 110-181), section
806 of the NDAA for FY 2010 (Pub. L. 111-84), and section 817 of the
NDAA for FY 2012 (Pub. L. 112-81) address requirements specific to
the acquisition of supplies and services by nondefense agencies on
behalf of DoD, and are, therefore, internal to the Government.
However, this case also adds a clarification at FAR 4.603(c),
restating existing Office of Federal Procurement Policy (OFPP) and
Federal Procurement Data System (FPDS) policy regarding the
allocation of socioeconomic credit for interagency acquisitions.
Although DoD, GSA, and NASA do not expect the clarification to have
a direct economic impact on a substantial number of small entities,
there is the possibility that the regulatory clarification may
improve the accuracy of FPDS data submissions related to the
allocation of socioeconomic credit to agencies for contracts and
orders awarded to a substantial number of small entities. Improved
data accuracy can have a positive impact on agencies' annual small
business goals.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
consistent with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-62, FAR Case
2012-010) in correspondence.
IV. Paperwork Reduction Act
The interim rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35).
V. Determination To Issue an Interim Rule
Pursuant to the Office of Federal Procurement Policy (OFPP)
Reauthorization Act, the Secretary of Defense, the Administrator of
General Services, and the Administrator of NASA have determined that
urgent and compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
because the NDAA for FY 2012 (Pub. L. 112-81) was enacted on December
31, 2011, and was effective upon enactment. Recognizing this, the FAR
Principals opened FAR Case 2012-010 on January 19, 2012. Section 817 of
the NDAA for FY 2012 amended section 801(d) of the NDAA for FY 2008 (10
U.S.C. 2304 note) to provide necessary clarifying language that
identifies the types of laws and regulations with which nondefense
departments and agencies must comply when procuring supplies and
services on behalf of DoD. Specifically, section 817 clarifies that the
nondefense agency certification of ``compliance with defense
procurement requirements'' for a given fiscal year means compliance
with (1) the FAR and other laws and regulations that apply to
procurements of property and services by Federal agencies, and (2) laws
and regulations (including DoD financial management regulations) that
apply to procurements of property and services made by DoD through
other Federal agencies. If this rule, which also informs nondefense
agencies regarding their responsibilities when buying on behalf of DoD,
is not implemented as an interim rule, it will negatively impact the
accuracy and completeness of nondefense agency certifications for
fiscal year 2013.
Every effort has been made to process this FAR requirement in an
expeditious manner. Processing this rule as an interim rule, with an
immediate effective date, will ensure that nondefense agencies
conducting acquisitions on behalf of DoD are fully informed of DoD
expectations and their responsibilities when nondefense agency senior
management completes the statutorily-mandated certifications for fiscal
year 2013. This requirement does not directly impact the public and is
purely an administrative FAR change that affects Government agencies
that conduct acquisitions on behalf of DoD.
However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA,
and NASA will consider public comments received in response to this
interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 4 and 17
Government procurement.
Dated: November 9, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4 and 17 as set
forth below:
0
1. The authority citation for 48 CFR parts 4 and 17 is revised to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.603 by adding two sentences to the end of paragraph
(c) to read as follows:
[[Page 69722]]
4.603 Policy.
* * * * *
(c) * * * For assisted acquisitions, the requesting agency will
receive socioeconomic credit for meeting agency small business goals,
where applicable. Requesting agencies shall provide the appropriate
agency/bureau component code as part of the written interagency
agreement between the requesting and servicing agencies (see 17.502-
1(b)(1)).
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
0
3. Amend section 17.500 by adding a new sentence to the end of
paragraph (a) to read as follows:
17.500 Scope of subpart.
(a) * * * In addition to complying with the interagency acquisition
policy and procedures in this subpart, nondefense agencies acquiring
supplies and services on behalf of the Department of Defense shall also
comply with the policy and procedures at subpart 17.7.
* * * * *
0
4. Amend section 17.502-1 by revising paragraph (b)(1)(i) to read as
follows:
17.502-1 General.
* * * * *
(b) * * *
(1) * * *
(i) Prior to the issuance of a solicitation, the servicing agency
and the requesting agency shall both sign a written interagency
agreement that establishes the general terms and conditions governing
the relationship between the parties, including roles and
responsibilities for acquisition planning, contract execution, and
administration and management of the contract(s) or order(s). The
requesting agency shall provide to the servicing agency any unique
terms, conditions, and applicable agency-specific statutes,
regulations, directives, and other applicable requirements for
incorporation into the order or contract. In the event there are no
agency unique requirements beyond the FAR, the requesting agency shall
so inform the servicing agency contracting officer in writing. For
acquisitions on behalf of the Department of Defense, also see subpart
17.7. For patent rights, see 27.304-2. In preparing interagency
agreements to support assisted acquisitions, agencies should review the
Office of Federal Procurement Policy guidance, Interagency
Acquisitions, available at https://www.whitehouse.gov/omb/assets/procurement/iac_revised.pdf.
* * * * *
0
5. Add Subpart 17.7 to read as follows:
Subpart 17.7--Interagency Acquisitions: Acquisitions by Nondefense
Agencies on Behalf of the Department of Defense
Sec.
17.700 Scope of subpart.
17.701 Definitions.
17.702 Applicability.
17.703 Policy.
Subpart 17.7--Interagency Acquisitions: Acquisitions by Nondefense
Agencies on Behalf of the Department of Defense
17.700 Scope of subpart.
(a) Compliance with this subpart is in addition to the policies and
procedures for interagency acquisitions set forth in subpart 17.5. This
subpart prescribes policies and procedures specific to acquisitions of
supplies and services by nondefense agencies on behalf of the
Department of Defense (DoD).
(b) This subpart implements Public Law 110-181, section 801, as
amended (10 U.S.C. 2304 Note).
17.701 Definitions.
As used in this subpart--
Department of Defense (DoD) acquisition official means--
(1) A DoD contracting officer; or
(2) Any other DoD official authorized to approve a direct
acquisition or an assisted acquisition on behalf of DoD.
Nondefense agency means any department or agency of the Federal
Government other than the Department of Defense.
Nondefense agency that is an element of the intelligence community
means the agencies identified in 50 U.S.C. 401a(4), which include the--
(1) Office of the Director of National Intelligence;
(2) Central Intelligence Agency;
(3) Intelligence elements of the Federal Bureau of Investigation,
Department of Energy, and Drug Enforcement Agency;
(4) Bureau of Intelligence and Research of the Department of State;
(5) Office of Intelligence and Analysis of the Department of the
Treasury;
(6) The Office of Intelligence and Analysis of the Department of
Homeland Security and the Office of Intelligence of the Coast Guard;
and
(7) Such other elements of any department or agency as have been
designated by the President, or designated jointly by the Director of
National Intelligence and the head of the department or agency
concerned, as an element of the intelligence community.
17.702 Applicability.
This subpart applies to all acquisitions made by nondefense
agencies on behalf of DoD. It does not apply to contracts entered into
by a nondefense 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 nondefense agency.
17.703 Policy.
(a) A DoD acquisition official may request a nondefense agency to
conduct an acquisition on behalf of DoD in excess of the simplified
acquisition threshold only if the head of the nondefense agency
conducting the acquisition on DoD's behalf has certified that the
agency will comply with defense procurement requirements for that
fiscal year except when waived in accordance with paragraph (e) of this
section.
(b) A nondefense agency is compliant with defense procurement
requirements if the procurement policies, procedures, and internal
controls of the nondefense agency applicable to the procurement of
supplies and services on behalf of DoD, and the manner in which they
are administered, are adequate to ensure the compliance of the
nondefense department or agency with--
(1) The Federal Acquisition Regulation and other laws and
regulations that apply to procurements of supplies and services by
Federal agencies; and
(2) Laws and regulations that apply to procurements of supplies and
services made by DoD through other Federal agencies, including DoD
financial management regulations, the Defense Federal Acquisition
Regulation Supplement (DFARS), and the DFARS Procedures, Guidance, and
Information (PGI). (The DFARS and PGIs are accessible at: https://www.acq.osd.mil/dpap/).
(c) Within 30 days of the beginning of each fiscal year, submit
nondefense agency certifications of compliance to the Director, Defense
Procurement and Acquisition Policy, Department of Defense, 3060 Defense
Pentagon, Washington DC 20301-3060.
(d) The DoD acquisition official, as defined at 17.701, shall
provide to the servicing nondefense agency contracting officer any DoD-
unique terms, conditions, other related statutes, regulations,
directives, and other applicable requirements for incorporation into
the order or contract. In the event there are no DoD-unique
[[Page 69723]]
requirements beyond the FAR, the DoD acquisition official shall so
inform the servicing nondefense agency contracting officer in writing.
Nondefense agency contracting officers are responsible for ensuring
support provided in response to DoD's request complies with paragraph
(b) of this section.
(e) Waiver. The limitation in paragraph (a) of this section shall
not apply to the acquisition of supplies and services on behalf of DoD
by a nondefense agency during any fiscal year for which the Under
Secretary of Defense for Acquisition, Technology, and Logistics has
determined in writing that it is necessary in the interest of DoD to
acquire supplies and services through the nondefense agency during the
fiscal year. The written determination shall identify the acquisition
categories to which the waiver applies.
(f) Nondefense agency certifications, waivers, and additional
information are available at https://www.acq.osd.mil/dpap/cpic/cp/interagency_acquisition.html.
[FR Doc. 2012-27905 Filed 11-19-12; 8:45 am]
BILLING CODE 6820-EP-P
