Federal Acquisition Regulation; Higher-Level Contract Quality Requirements, 72620-72622 [2013-28930]
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Federal Register / Vol. 78, No. 232 / Tuesday, December 3, 2013 / Proposed Rules
action revises a specific condition of the
Compliance Criteria in 40 CFR part 194.
These criteria are applicable only to the
DOE (operator) and the EPA (regulator)
of the WIPP disposal facility. Thus,
Executive Order 13132 does not apply
to this rule. In the spirit of Executive
Order 13132, and consistent with the
Agency’s policy to promote
communications between the EPA and
state and local governments, the EPA
specifically solicits comment on this
proposed rule from state and local
officials.
Authority: Pub. L. 102–579, 106 Stat. 4777,
as amended by Public Law 104–201, 110 Stat.
2422; Reorganization Plan No. 3 of 1970, 35
FR 15623, Oct. 6, 1970, 5 U.S.C. app. 1;
Atomic Energy Act of 1954, as amended, 42
U.S.C. 2011–2296 and 10101–10270.
I. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
*
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249; November 9, 2000), requires the
EPA to develop an accountable process
to ensure ‘‘meaningful and timely input
by tribal officials in the development of
regulatory policies that have tribal
implications.’’ This proposed rule does
not have tribal implications, as specified
in Executive Order 13175. This
proposed action revises a condition of
the Compliance Criteria in 40 CFR part
194. The Compliance Criteria are
applicable only to Federal agencies.
Thus, Executive Order 13175 does not
apply to this rule. In the spirit of
Executive Order 13175, and consistent
with the EPA policy to promote
consultation and coordination with
Indian Tribal Governments, the Agency
specifically solicits comment on this
proposed rule from Tribal officials.
2. Amend Appendix A to Part 194 by
revising Condition 1: § 194.14(b) to read
as follows:
■
Appendix A to Part 194—Certification
of the Waste Isolation Pilot Plant’s
Compliance With the 40 CFR Part 191
Disposal Regulations and the 40 CFR
Part 194 Compliance Criteria
*
*
*
*
Condition 1: § 194.14(b), Disposal system
design, panel closure system. The
Department shall close filled waste panels in
a manner that has been specifically approved
by the Agency. Any modification to the
approved panel closure design must be
submitted by the DOE as a planned change
request pursuant to § 194.4(b)(3)(i), and
include supporting information required by
§ 194.14, Content of compliance certification
application. The Administrator or
Administrator’s authorized representative
will determine whether the planned change
differs significantly from the design included
in the most recent compliance certification,
and whether the planned change would
require modification of the compliance
criteria. The EPA’s approval of a panel
closure change request requires that
performance assessment calculations
adequately represent the waste panel closure
design, and that those calculations
demonstrate the WIPP’s compliance with the
release standards set by 40 CFR part 191,
Subpart B in accordance with § 194.34,
Results of performance assessments.
*
*
*
*
*
[FR Doc. 2013–28240 Filed 12–2–13; 8:45 am]
BILLING CODE 6560–50–P
J. Executive Order 13211: Energy Effects
This proposed rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355; May
22, 2001) because it is not a significant
regulatory action under Executive Order
12866.
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 44, 46, and 52
For the reasons set out in the
preamble, 40 CFR part 194 is proposed
to be amended as follows:
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Dated: November 18, 2013.
Janet G. McCabe,
Acting Assistant Administrator, Office of Air
and Radiation.
RIN 9000–AM65
PART 194—CRITERIA FOR THE
CERTIFICATION AND
RECERTIFICATION OF THE WASTE
ISOLATION PILOT PLANT’S
COMPLIANCE WITH THE 40 CFR PART
191 DISPOSAL REGULATIONS
1. The authority citation for part 194
continues to read as follows:
■
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[FAR Case 2012–032; Docket No. 2012–
0032; Sequence No. 1]
Federal Acquisition Regulation;
Higher-Level Contract Quality
Requirements
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCY:
DoD, GSA, and NASA are
proposing to amend the Federal
SUMMARY:
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Acquisition Regulation (FAR) to clarify
when to use higher-level quality
standards in solicitations and contracts,
and to update the examples of higherlevel quality standards by revising
obsolete standards and adding two new
industry standards that pertain to
quality assurance for avoidance of
counterfeit items. These standards will
be used to help minimize and mitigate
counterfeit items or suspect counterfeit
items in Government contracting.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat at one of the addressees
shown below on or before February 3,
2014 to be considered in the formation
of the final rule.
ADDRESSES: Submit comments in
response to FAR Case 2012–032 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
searching for ‘‘FAR Case 2012–032.’’
Select the link ‘‘Submit a Comment’’
that corresponds with ‘‘FAR Case 2012–
032.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘FAR Case 2012–
032’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1800 F
Street NW., 2nd Floor, Washington, DC
20405–0001.
Instructions: Please submit comments
only and cite FAR Case 2012–032, 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.
Marissa Petrusek, Procurement Analyst,
at 202–501–0136, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at 202–501–
4755. Please cite FAR Case 2012–032.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing
to amend the Federal Acquisition
Regulation (FAR) to revise FAR subpart
46.2, Contract Quality Requirements, to
ensure that agencies assess the risk of
nonconforming items when determining
whether higher-level quality standards
should be used by the Government and
relied on by contractors. These quality
standards must be designated in the
solicitation and resultant contract. The
contractor must also ensure its
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emcdonald on DSK67QTVN1PROD with PROPOSALS
subcontractors adhere to the quality
standards, where appropriate. This case
proposes to add this to the list of issues
to be considered during contractor
purchasing system reviews, referenced
in FAR 44.303, to ensure that higherlevel quality standards are implemented
appropriately by the prime contractor.
Section 818, entitled ‘‘Detection and
Avoidance of Counterfeit Electronic
Parts,’’ of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2012 (Pub. L. 112–81, enacted
December 31, 2011) requires DoD to
issue regulations addressing contractor
responsibilities for detecting and
avoiding the use or inclusion of
counterfeit electronic parts or suspect
counterfeit electronic parts. However,
because of the globalization of the
marketplace, the problem of counterfeits
extends far beyond DoD and electronic
parts, posing a supply chain challenge
to both Government and industry.
Globalization in the marketplace
increased the risk of counterfeit items in
the government’s and industry’s supply
chain. Globalization raises the risk
because of the variations in laws related
to commerce and fragments the quality
assurance process.
While this rule does not directly
implement any specific aspect of section
818, it recognizes the quality, reliability,
and safety risk that counterfeit items
represent, and adds two examples of
higher-level quality standards that
respond to the need for quality controls
in acquisitions for complex or critical
items.
This proposed rule is one of three
FAR system proposed rules addressing
various aspects of detection and
avoidance of counterfeit parts as
required by section 818:
1. Defense Federal Acquisition
Regulation Supplement Case 2012–
D055, entitled ‘‘Detection and
Avoidance of Counterfeit Electronic
Parts,’’ which was published for public
comment in the Federal Register at 78
FR 28780 on May 16, 2013.
2. FAR Case 2013–002, entitled
‘‘Expanded Reporting of Nonconforming
Supplies,’’ is being drafted to require
expanded reporting of nonconforming
items in partial implementation of
section 818 of the NDAA for FY 2012.
• Types of contract quality
requirements FAR subsections will
change as follows:
Æ FAR 46.202–4(a) would be revised
to require agencies to establish
procedures for determining when
higher-level quality standards are
appropriate, for determining the risk
(both the likelihood and the impact) of
receiving nonconforming items, and for
advising the contracting officer which
higher-level quality standards should be
applied on the contract.
• FAR 46.202–4(a)(1) would be
revised to add ‘‘design’’ and ‘‘testing’’ to
the list of examples of technical
requirements requiring control.
Æ FAR 46.202–4(b) would be revised
to remove outdated or obsolete
standards and add new examples of
higher-level quality standards,
including those related to counterfeit
electronic parts and materials. This list
of standards was reviewed and revised
based on subject matter experts in
quality assurance from across the
Government.
• FAR 46.311, Higher-level Contract
Quality Requirement, would be revised
to clarify that, if the clause is used, the
contracting officer shall list one or more
higher-level quality standard.
• The clause at FAR 52.246–11,
Higher-Level Contract Quality
Requirement, would be revised to
remove the opportunity for the offeror to
select a standard.
II. Discussion and Analysis
IV. Regulatory Flexibility Act
The Department of Defense (DoD), the
General Services Administration (GSA),
and the National Aeronautics and Space
Administration (NASA) do not expect
this proposed rule to have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
The rule proposes to make the
following changes:
• FAR 44.303, Contractors’
Purchasing Systems Review, would be
revised to add implementation of
higher-level quality standards to the
areas for evaluation when conducting a
contractor’s purchasing system review.
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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.
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Act, 5 U.S.C. 601, et seq., because it
does not apply to acquisitions for goods
or services that are not designated
critical by the agency and does not add
new reporting requirements.
The Initial Regulatory Flexibility
Analysis (IRFA) is summarized as
follows:
This case was opened to enable the
Government to select appropriate quality
standards based on the criticality of the
requirement and the risk nonconforming
items pose to the accomplishment of an
agency’s mission in a given acquisition.
Based on this analysis, the Government will
identify the appropriate quality standards for
the procurement. The contractor must ensure
that its deliverables meet all the specified
quality standards, which also entails
ensuring that its subcontractors adhere to the
higher level quality standard where
appropriate. This case proposes to (a) have
the contracting officer specify the higherlevel quality requirement(s), as opposed to
the contractor selecting a standard from a list
and (b) add the implementation of higherlevel quality standards to the list of items to
be considered during contractor purchasing
system reviews. No instances were found in
practice where this clause was being used to
allow offerors an opportunity to opt-out of a
quality standard; therefore, this change is
being made, in part, to be consistent with
common practice.
We estimate that small businesses that
provide critical items directly to the
Government or to Government prime
contractors may be impacted by this rule,
however, there are no statistics or databases
that would identify the number of contracts
that contain higher-level quality standards
and how many of those contracts are
awarded to small businesses.
There are no reporting, recordkeeping, or
other compliance requirements associated
with this proposed rule. Any such
requirements for a contractor purchasing
system review have already been addressed
in FAR subpart 44.3. The proposed rule will
not create new purchasing system review
requirements beyond those that already exist.
The rule does not duplicate, overlap, or
conflict with any other Federal rules. The
compliance and reporting requirements
associated with the proposed rule have been
minimized. DoD, GSA, and NASA have been
unable to identify any alternatives that meet
the objectives of this rule.
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 in
accordance with 5 U.S.C. 610. Interested
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Federal Register / Vol. 78, No. 232 / Tuesday, December 3, 2013 / Proposed Rules
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAR Case 2012–032) in
correspondence.
V. Paperwork Reduction Act
The proposed 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).
List of Subjects in 48 CFR Parts 44, 46,
and 52
Government procurement.
Dated: November 26, 2013.
William Clark,
Acting Director, Office of Government-Wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 44, 46,
and 52 as set forth below:
■ 1. The authority citation for 48 CFR
part 44 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
PART 44—SUBCONTRACTING
POLICIES AND PROCEDURES
46.311 Higher-level contract quality
requirement.
2. Amend section 44.303 by—
a. Removing from the end of
paragraph (i) ‘‘and’’;
■ b. Removing from the end of
paragraph (j) the period and adding ‘‘;
and’’ in its place; and
■ c. Adding paragraph (k).
The added text reads as follows:
■
■
44.303
appropriate in solicitations and
contracts for complex or critical items
(see 46.203(b) and (c)) or when the
technical requirements of the contract
require—
(1) Control of such things as design,
work operations, in-process controls,
testing, and inspection; or
(2) Attention to such factors as
organization, planning, work
instructions, documentation control,
and advanced metrology.
(b) When the contracting officer, in
consultation with technical personnel
and in accordance with agency
procedures, finds it is in the
Government’s interest to require higherlevel quality standards be implemented,
the contracting officer shall use the
clause prescribed at 46.311 to list the
applicable standard(s). Examples of
higher-level quality standards include,
but are not limited to, ISO 9001, ASQ
E, ASME NQA–1, SAE AS9100, SAE
AS9003, SAE AS5553, and SAE
AS6174.
■ 5. Revise section 46.311 to read as
follows:
The contracting officer shall insert the
clause at 52.246–11, Higher-Level
Contract Quality Requirement, in
solicitations and contracts when the
inclusion of a higher-level contract
quality requirement is appropriate and
one or more such standards will be
included in the clause (see 46.202–4).
Extent of review.
*
*
*
*
*
(k) Implementation of higher-level
quality standards.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
PART 46—QUALITY ASSURANCE
6. The authority citation for 48 CFR
part 52 continues to read as follows:
3. The authority citation for 48 CFR
part 46 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.
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
■
■
■
7. Revise section 52.246–11 to read as
follows:
4. Revise section 46.202–4 to read as
follows:
■
52.246–11 Higher-Level Contract Quality
Requirement.
emcdonald on DSK67QTVN1PROD with PROPOSALS
46.202–4 Higher-level contract quality
requirements.
(a) Agencies shall establish
procedures for determining when
higher-level contract quality
requirements are necessary, for
determining the risk (both the
likelihood and the impact) of receiving
nonconforming items, and for advising
the contracting officer about which
higher-level standards should be
applied and included in the solicitation
and contract. Requiring compliance
with higher-level quality standards is
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–HQ–ES–2013–0107;450
003 0115]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition To List 11 Tarantula Species in
the Genus Poecilotheria as
Endangered or Threatened
Fish and Wildlife Service,
Interior.
ACTION: Notice of petition finding and
initiation of status review.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce a
90-day finding on a petition to list 11
tarantula species in the genus
Poecilotheria as endangered or
threatened species under the
Endangered Species Act of 1973, as
amended (Act). Based on our review, we
find that the petition presents
substantial scientific and commercial
information indicating that listing these
species may be warranted. Therefore,
with the publication of this notice, we
are initiating a review of the status of
these species to determine if listing
these 11 species is warranted. To ensure
that this status review is
comprehensive, we request scientific
and commercial data and other
information regarding these species. At
the conclusion of this review, we will
issue a 12-month finding on the
petition, as provided in section
4(b)(3)(B) of the Act.
DATES: To allow us adequate time to
conduct this review, we request that we
receive information on or before
February 3, 2014. After this date, you
must submit information directly to the
office listed in the FOR FURTHER
INFORMATION CONTACT section below.
Please note that we may not be able to
address or incorporate information that
we receive after the above requested
date.
SUMMARY:
You may submit
information by one of the following
methods:
• Electronically: Go to the Federal
eRulemaking Portal: https://
The Contractor shall comply with the
higher-level quality standard(s) listed below.
www.regulations.gov. In the Search
lllllllllllllllllllll field, enter Docket No. FWS–HQ–ES–
[Contracting Officer insert the title,
2013–0107, which is the docket number
number, date, and tailoring (if any) of the
for this action. Then click on the Search
higher-level quality standards.]
button. You may submit information by
clicking on ‘‘Comment Now!’’ If your
(End of clause)
information will fit in the provided
[FR Doc. 2013–28930 Filed 12–2–13; 8:45 am]
comment box, please use this feature of
https://www.regulations.gov, as it is most
BILLING CODE 6820–EP–P
As prescribed in 46.311, insert the
following clause: Higher-Level Contract
Quality Requirement (Date)
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ADDRESSES:
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]]>Agencies
[Federal Register Volume 78, Number 232 (Tuesday, December 3, 2013)]
[Proposed Rules]
[Pages 72620-72622]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28930]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 44, 46, and 52
[FAR Case 2012-032; Docket No. 2012-0032; Sequence No. 1]
RIN 9000-AM65
Federal Acquisition Regulation; Higher-Level Contract Quality
Requirements
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to clarify when to use higher-level
quality standards in solicitations and contracts, and to update the
examples of higher-level quality standards by revising obsolete
standards and adding two new industry standards that pertain to quality
assurance for avoidance of counterfeit items. These standards will be
used to help minimize and mitigate counterfeit items or suspect
counterfeit items in Government contracting.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before February 3, 2014 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2012-032 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2012-032.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2012-032.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2012-032'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street NW., 2nd Floor,
Washington, DC 20405-0001.
Instructions: Please submit comments only and cite FAR Case 2012-
032, 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. Marissa Petrusek, Procurement
Analyst, at 202-501-0136, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAR Case 2012-032.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the Federal Acquisition
Regulation (FAR) to revise FAR subpart 46.2, Contract Quality
Requirements, to ensure that agencies assess the risk of nonconforming
items when determining whether higher-level quality standards should be
used by the Government and relied on by contractors. These quality
standards must be designated in the solicitation and resultant
contract. The contractor must also ensure its
[[Page 72621]]
subcontractors adhere to the quality standards, where appropriate. This
case proposes to add this to the list of issues to be considered during
contractor purchasing system reviews, referenced in FAR 44.303, to
ensure that higher-level quality standards are implemented
appropriately by the prime contractor.
Section 818, entitled ``Detection and Avoidance of Counterfeit
Electronic Parts,'' of the National Defense Authorization Act (NDAA)
for Fiscal Year (FY) 2012 (Pub. L. 112-81, enacted December 31, 2011)
requires DoD to issue regulations addressing contractor
responsibilities for detecting and avoiding the use or inclusion of
counterfeit electronic parts or suspect counterfeit electronic parts.
However, because of the globalization of the marketplace, the problem
of counterfeits extends far beyond DoD and electronic parts, posing a
supply chain challenge to both Government and industry. Globalization
in the marketplace increased the risk of counterfeit items in the
government's and industry's supply chain. Globalization raises the risk
because of the variations in laws related to commerce and fragments the
quality assurance process.
While this rule does not directly implement any specific aspect of
section 818, it recognizes the quality, reliability, and safety risk
that counterfeit items represent, and adds two examples of higher-level
quality standards that respond to the need for quality controls in
acquisitions for complex or critical items.
This proposed rule is one of three FAR system proposed rules
addressing various aspects of detection and avoidance of counterfeit
parts as required by section 818:
1. Defense Federal Acquisition Regulation Supplement Case 2012-
D055, entitled ``Detection and Avoidance of Counterfeit Electronic
Parts,'' which was published for public comment in the Federal Register
at 78 FR 28780 on May 16, 2013.
2. FAR Case 2013-002, entitled ``Expanded Reporting of
Nonconforming Supplies,'' is being drafted to require expanded
reporting of nonconforming items in partial implementation of section
818 of the NDAA for FY 2012.
II. Discussion and Analysis
The rule proposes to make the following changes:
FAR 44.303, Contractors' Purchasing Systems Review, would
be revised to add implementation of higher-level quality standards to
the areas for evaluation when conducting a contractor's purchasing
system review.
Types of contract quality requirements FAR subsections
will change as follows:
[cir] FAR 46.202-4(a) would be revised to require agencies to
establish procedures for determining when higher-level quality
standards are appropriate, for determining the risk (both the
likelihood and the impact) of receiving nonconforming items, and for
advising the contracting officer which higher-level quality standards
should be applied on the contract.
FAR 46.202-4(a)(1) would be revised to add ``design'' and
``testing'' to the list of examples of technical requirements requiring
control.
[cir] FAR 46.202-4(b) would be revised to remove outdated or
obsolete standards and add new examples of higher-level quality
standards, including those related to counterfeit electronic parts and
materials. This list of standards was reviewed and revised based on
subject matter experts in quality assurance from across the Government.
FAR 46.311, Higher-level Contract Quality Requirement,
would be revised to clarify that, if the clause is used, the
contracting officer shall list one or more higher-level quality
standard.
The clause at FAR 52.246-11, Higher-Level Contract Quality
Requirement, would be revised to remove the opportunity for the offeror
to select a standard.
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 (DoD), the General Services
Administration (GSA), and the National Aeronautics and Space
Administration (NASA) do not expect this proposed rule to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because it does not apply to acquisitions for goods or services
that are not designated critical by the agency and does not add new
reporting requirements.
The Initial Regulatory Flexibility Analysis (IRFA) is summarized as
follows:
This case was opened to enable the Government to select
appropriate quality standards based on the criticality of the
requirement and the risk nonconforming items pose to the
accomplishment of an agency's mission in a given acquisition. Based
on this analysis, the Government will identify the appropriate
quality standards for the procurement. The contractor must ensure
that its deliverables meet all the specified quality standards,
which also entails ensuring that its subcontractors adhere to the
higher level quality standard where appropriate. This case proposes
to (a) have the contracting officer specify the higher-level quality
requirement(s), as opposed to the contractor selecting a standard
from a list and (b) add the implementation of higher-level quality
standards to the list of items to be considered during contractor
purchasing system reviews. No instances were found in practice where
this clause was being used to allow offerors an opportunity to opt-
out of a quality standard; therefore, this change is being made, in
part, to be consistent with common practice.
We estimate that small businesses that provide critical items
directly to the Government or to Government prime contractors may be
impacted by this rule, however, there are no statistics or databases
that would identify the number of contracts that contain higher-
level quality standards and how many of those contracts are awarded
to small businesses.
There are no reporting, recordkeeping, or other compliance
requirements associated with this proposed rule. Any such
requirements for a contractor purchasing system review have already
been addressed in FAR subpart 44.3. The proposed rule will not
create new purchasing system review requirements beyond those that
already exist. The rule does not duplicate, overlap, or conflict
with any other Federal rules. The compliance and reporting
requirements associated with the proposed rule have been minimized.
DoD, GSA, and NASA have been unable to identify any alternatives
that meet the objectives of this rule.
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
in accordance with 5 U.S.C. 610. Interested
[[Page 72622]]
parties must submit such comments separately and should cite 5 U.S.C.
610 (FAR Case 2012-032) in correspondence.
V. Paperwork Reduction Act
The proposed 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).
List of Subjects in 48 CFR Parts 44, 46, and 52
Government procurement.
Dated: November 26, 2013.
William Clark,
Acting Director, Office of Government-Wide Acquisition Policy, Office
of Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 44, 46,
and 52 as set forth below:
0
1. The authority citation for 48 CFR part 44 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 44--SUBCONTRACTING POLICIES AND PROCEDURES
0
2. Amend section 44.303 by--
0
a. Removing from the end of paragraph (i) ``and'';
0
b. Removing from the end of paragraph (j) the period and adding ``;
and'' in its place; and
0
c. Adding paragraph (k).
The added text reads as follows:
44.303 Extent of review.
* * * * *
(k) Implementation of higher-level quality standards.
PART 46--QUALITY ASSURANCE
0
3. The authority citation for 48 CFR part 46 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.
0
4. Revise section 46.202-4 to read as follows:
46.202-4 Higher-level contract quality requirements.
(a) Agencies shall establish procedures for determining when
higher-level contract quality requirements are necessary, for
determining the risk (both the likelihood and the impact) of receiving
nonconforming items, and for advising the contracting officer about
which higher-level standards should be applied and included in the
solicitation and contract. Requiring compliance with higher-level
quality standards is appropriate in solicitations and contracts for
complex or critical items (see 46.203(b) and (c)) or when the technical
requirements of the contract require--
(1) Control of such things as design, work operations, in-process
controls, testing, and inspection; or
(2) Attention to such factors as organization, planning, work
instructions, documentation control, and advanced metrology.
(b) When the contracting officer, in consultation with technical
personnel and in accordance with agency procedures, finds it is in the
Government's interest to require higher-level quality standards be
implemented, the contracting officer shall use the clause prescribed at
46.311 to list the applicable standard(s). Examples of higher-level
quality standards include, but are not limited to, ISO 9001, ASQ E,
ASME NQA-1, SAE AS9100, SAE AS9003, SAE AS5553, and SAE AS6174.
0
5. Revise section 46.311 to read as follows:
46.311 Higher-level contract quality requirement.
The contracting officer shall insert the clause at 52.246-11,
Higher-Level Contract Quality Requirement, in solicitations and
contracts when the inclusion of a higher-level contract quality
requirement is appropriate and one or more such standards will be
included in the clause (see 46.202-4).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. The authority citation for 48 CFR part 52 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
0
7. Revise section 52.246-11 to read as follows:
52.246-11 Higher-Level Contract Quality Requirement.
As prescribed in 46.311, insert the following clause: Higher-Level
Contract Quality Requirement (Date)
The Contractor shall comply with the higher-level quality
standard(s) listed below.
-----------------------------------------------------------------------
[Contracting Officer insert the title, number, date, and
tailoring (if any) of the higher-level quality standards.]
(End of clause)
[FR Doc. 2013-28930 Filed 12-2-13; 8:45 am]
BILLING CODE 6820-EP-P
