Defense Federal Acquisition Regulation Supplement: Contract Term Limit for Energy Savings Contracts (DFARS Case 2015-D018), 28733-28735 [2016-10824]
Download as PDF
<![CDATA[
Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to add a definition of ‘‘longhaul telecommunications.’’
DATES: Effective May 10, 2016.
FOR FURTHER INFORMATION CONTACT: Mr.
Christopher Stiller, telephone 571–372–
6176.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD published a proposed rule in the
Federal Register at 80 FR 72674 on
November 20, 2015, to revise DFARS
subpart 239.74 to add ‘‘long-haul
telecommunications’’ to the
telecommunications services definitions
and identify Defense Information
Systems Agency as the procurer of longhaul telecommunications services for
DoD, as mentioned in DoD Directive
5105.19, Defense Information Systems
Agency. There were no public
comments submitted in response to the
proposed rule. There are no changes
from the proposed rule made in the final
rule.
II. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This case does not add any new
provisions or clauses or impact any
existing provisions or clauses.
III. 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.
ehiers on DSK5VPTVN1PROD with RULES
IV. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
The purpose of this final rule is to
amend the Defense Federal Acquisition
VerDate Sep<11>2014
15:17 May 09, 2016
Jkt 238001
Regulation Supplement (DFARS) to add
a definition of ‘‘long-haul
telecommunications’’ and provide a
pointer to DFARS Procedures,
Guidance, and Information for
procedures internal to DoD.
No comments were received from the
public regarding the initial regulatory
flexibility analysis.
The requirements under this rule will
apply to long-haul telecommunications
(Product Service Code D304)
requirements as defined in the DoD
Directive 5105.19, Defense Information
Systems Agency. According to data
available in the Federal Procurement
Data System-Next Generation (FPDS–
NG) for fiscal year 2014 through July 31,
2015, DoD awarded 13,596 new longhaul telecommunications contracts.
Approximately 3 percent (451) of the
total were awarded to small entities
(comprised of 222 unique small
entities).
This rule does not create any new
reporting or recordkeeping
requirements.
There are no known significant
alternatives to the rule. The impact of
this rule on small entities is not
expected to be significant because it
only affects DoD internal operating
procedures.
V. Paperwork Reduction Act
List of Subjects in 48 CFR Part 239
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 239 is
amended as follows:
PART 239—ACQUISITION OF
INFORMATION TECHNOLOGY
1. The authority citation for part 239
continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Amend section 239.7401 by—
a. Removing the alphabetical
paragraph designation from each
definition; and
■ b. Adding, in alphabetical order, a
new definition for ‘‘Long-haul
telecommunications’’.
The addition reads as follows:
239.7401
*
PO 00000
*
Definitions.
*
Frm 00045
*
Fmt 4700
*
Sfmt 4700
Long-haul telecommunications means
all general and special purpose longdistance telecommunications facilities
and services (including commercial
satellite services, terminal equipment
and local circuitry supporting the longhaul service) to or from the post, camp,
base, or station switch and/or main
distribution frame (except for trunk
lines to the first-serving commercial
central office for local communications
services).
*
*
*
*
*
■ 3. Amend section 239.7402 by adding
paragraph (d) to read as follows:
239.7402
Policy.
*
*
*
*
*
(d) Long-haul telecommunications
services. When there is a requirement
for procurement of long-haul
telecommunications services, follow
PGI 239.7402(d).
[FR Doc. 2016–10825 Filed 5–9–16; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 241
[Docket DARS–2015–0050]
The 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).
■
■
28733
RIN 0750–AI74
Defense Federal Acquisition
Regulation Supplement: Contract Term
Limit for Energy Savings Contracts
(DFARS Case 2015–D018)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to clarify the contract term for
energy savings contracts awarded under
10 U.S.C. 2913.
DATES: Effective May 10, 2016.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, telephone 571–372–
6106.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 80 FR 72675 on
November 20, 2015, to clarify the
contract term for contracts awarded
under the statutory authority of 10
U.S.C. 2913. Ten respondents submitted
public comments in response to the
proposed rule.
E:\FR\FM\10MYR1.SGM
10MYR1
28734
Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments received
and the changes made to the rule as a
result of those comments follows:
A. Summary of Significant Changes
From the Proposed Rule
The final rule has been revised at
DFARS 241.103(2) to provide that the
contracting officer may enter into an
energy savings contract under 10 U.S.C.
2913 for a period not to exceed 25 years.
This change to ‘‘energy savings
contract’’ from ‘‘shared energy savings
contract’’ brings the term limit for all
activities authorized by section 2913
under the final rule.
B. Analysis of Public Comments
1. General Support for the Rule
Comment: Several respondents
expressed support for the changes in the
proposed rule, indicating that the term
limit of 25 years would promote the use
of shared energy savings contracts, have
a positive benefit on small businesses,
facilitate greater partnerships between
utilities and DoD customers, and
increase competition. One respondent
indicated that the term limit of 25 years
would lead to several benefits including
deeper retrofits, elimination of cream
skimming, effectively leveraging private
sector funding, and accomplishing the
President’s Performance Contracting
Challenge goals.
Response: Noted.
2. Clarification of the Contract Period
ehiers on DSK5VPTVN1PROD with RULES
Comment: One respondent requested
clarification of the date that the contract
period commences. The respondent
stated that the rule would most
effectively accomplish its goal of
accommodating project financing needs
if the contract period were tied to the
payment term, and suggested that the
rule be revised to state the following:
‘‘The contracting officer may enter into
a shared energy savings contract under
10 U.S.C. 2913 for a ‘payment term’ not
to exceed 25 years.’’
Response: Payment term is
interpreted as the performance period of
the contract, which is not to exceed 25
years. The contract period will include
the entire performance period,
including construction, if any.
3. Inclusion of Water-Related Projects
Comment: One respondent expressed
concern that the rule’s failure to address
water-related projects authorized by 10
U.S.C. 2866 would result in ambiguity
and confusion with regard to the term
limit for such contracts. The respondent
VerDate Sep<11>2014
15:17 May 09, 2016
Jkt 238001
suggested that the rule be revised to
state the following: ‘‘The contracting
officer may enter into a contract under
10 U.S.C. 2913 or 10 U.S.C. 2866 for a
period not to exceed 25 years.’’
Response: The recommendation is
beyond the scope of the case.
4. Application of 10 U.S.C. 2913 to
Agreements With Gas or Electric
Utilities
Comment: One respondent stated that
10 U.S.C. 2913 applies not only to
shared energy savings contracts, but also
to agreements with gas or electric
companies, and recommended removing
the reference to shared energy savings
contracts.
Response: The final rule has been
revised at 241.103(2) to provide that the
contracting officer may enter into an
energy savings contract under 10 U.S.C.
2913 for a period not to exceed 25 years.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not add any new
provisions or clauses or impact any
existing provisions or clauses.
IV. 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.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is
summarized as follows:
This final rule amends the Defense
Federal Acquisition Regulation
Supplement (DFARS) to clarify the
contract term for contracts awarded
under the statutory authority of 10
U.S.C. 2913. Section 2913 requires DoD
to develop a simplified method of
contracting for shared energy savings
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
contract services that will accelerate the
use of such contracts. DoD is authorized
by section 2913 to contract with utility
service providers to implement energy
conservation measures on military
bases. Section 2913 does not indicate a
term limit for contracts or activities
executed under this authority, and this
has created ambiguity and inconsistency
throughout DoD on the term limit that
is imposed on contracts awarded under
the authority. Additionally, the
ambiguity has resulted in a hesitation to
enter shared energy savings contracts,
contrary to the intent of section 2913.
No comments were received from the
public regarding the initial regulatory
flexibility analysis.
The rule is not anticipated to have a
significant economic impact on small
business entities. The number of
contract awards made under the
authority of 10 U.S.C. 2913 is not
currently tracked by DoD’s business
systems. However, it is estimated that
approximately 25 shared energy savings
projects are initiated across DoD each
year, with approximately 17 being
awarded annually. It is believed that
most awards are made to large utility
providers, with generally 25% or more
of the renovation and operations and
maintenance work executed under the
awards being subcontracted to local
small business by the utility provider.
This rule does not create any new
reporting or recordkeeping
requirements.
There are no known significant
alternatives to the rule.
VI. Paperwork Reduction Act
The 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 Part 241
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 241 is
amended as follows:
PART 241—ACQUISITION OF UTILITY
SERVICES
1. The authority citation for part 241
continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Amend section 241.103 by—
a. Redesignating paragraphs (2) and
(3) as paragraphs (3) and (4); and
■ b. Adding a new paragraph (2).
■
■
E:\FR\FM\10MYR1.SGM
10MYR1
Federal Register / Vol. 81, No. 90 / Tuesday, May 10, 2016 / Rules and Regulations
The addition reads as follows:
241.103
*
*
Statutory and delegated authority.
*
*
(2) The contracting officer may enter
into an energy savings contract under 10
*
U.S.C. 2913 for a period not to exceed
25 years.
*
*
*
*
*
[FR Doc. 2016–10824 Filed 5–9–16; 8:45 am]
ehiers on DSK5VPTVN1PROD with RULES
BILLING CODE 5001–06–P
VerDate Sep<11>2014
15:17 May 09, 2016
28735
Jkt 238001
PO 00000
Frm 00047
Fmt 4700
Sfmt 9990
E:\FR\FM\10MYR1.SGM
10MYR1
]]>Agencies
[Federal Register Volume 81, Number 90 (Tuesday, May 10, 2016)]
[Rules and Regulations]
[Pages 28733-28735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10824]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 241
[Docket DARS-2015-0050]
RIN 0750-AI74
Defense Federal Acquisition Regulation Supplement: Contract Term
Limit for Energy Savings Contracts (DFARS Case 2015-D018)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to clarify the contract term
for energy savings contracts awarded under 10 U.S.C. 2913.
DATES: Effective May 10, 2016.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, telephone 571-372-
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 80 FR
72675 on November 20, 2015, to clarify the contract term for contracts
awarded under the statutory authority of 10 U.S.C. 2913. Ten
respondents submitted public comments in response to the proposed rule.
[[Page 28734]]
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments received and the changes made to the
rule as a result of those comments follows:
A. Summary of Significant Changes From the Proposed Rule
The final rule has been revised at DFARS 241.103(2) to provide that
the contracting officer may enter into an energy savings contract under
10 U.S.C. 2913 for a period not to exceed 25 years. This change to
``energy savings contract'' from ``shared energy savings contract''
brings the term limit for all activities authorized by section 2913
under the final rule.
B. Analysis of Public Comments
1. General Support for the Rule
Comment: Several respondents expressed support for the changes in
the proposed rule, indicating that the term limit of 25 years would
promote the use of shared energy savings contracts, have a positive
benefit on small businesses, facilitate greater partnerships between
utilities and DoD customers, and increase competition. One respondent
indicated that the term limit of 25 years would lead to several
benefits including deeper retrofits, elimination of cream skimming,
effectively leveraging private sector funding, and accomplishing the
President's Performance Contracting Challenge goals.
Response: Noted.
2. Clarification of the Contract Period
Comment: One respondent requested clarification of the date that
the contract period commences. The respondent stated that the rule
would most effectively accomplish its goal of accommodating project
financing needs if the contract period were tied to the payment term,
and suggested that the rule be revised to state the following: ``The
contracting officer may enter into a shared energy savings contract
under 10 U.S.C. 2913 for a `payment term' not to exceed 25 years.''
Response: Payment term is interpreted as the performance period of
the contract, which is not to exceed 25 years. The contract period will
include the entire performance period, including construction, if any.
3. Inclusion of Water-Related Projects
Comment: One respondent expressed concern that the rule's failure
to address water-related projects authorized by 10 U.S.C. 2866 would
result in ambiguity and confusion with regard to the term limit for
such contracts. The respondent suggested that the rule be revised to
state the following: ``The contracting officer may enter into a
contract under 10 U.S.C. 2913 or 10 U.S.C. 2866 for a period not to
exceed 25 years.''
Response: The recommendation is beyond the scope of the case.
4. Application of 10 U.S.C. 2913 to Agreements With Gas or Electric
Utilities
Comment: One respondent stated that 10 U.S.C. 2913 applies not only
to shared energy savings contracts, but also to agreements with gas or
electric companies, and recommended removing the reference to shared
energy savings contracts.
Response: The final rule has been revised at 241.103(2) to provide
that the contracting officer may enter into an energy savings contract
under 10 U.S.C. 2913 for a period not to exceed 25 years.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule does not add any new provisions or clauses or impact any
existing provisions or clauses.
IV. 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.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
This final rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to clarify the contract term for contracts awarded
under the statutory authority of 10 U.S.C. 2913. Section 2913 requires
DoD to develop a simplified method of contracting for shared energy
savings contract services that will accelerate the use of such
contracts. DoD is authorized by section 2913 to contract with utility
service providers to implement energy conservation measures on military
bases. Section 2913 does not indicate a term limit for contracts or
activities executed under this authority, and this has created
ambiguity and inconsistency throughout DoD on the term limit that is
imposed on contracts awarded under the authority. Additionally, the
ambiguity has resulted in a hesitation to enter shared energy savings
contracts, contrary to the intent of section 2913.
No comments were received from the public regarding the initial
regulatory flexibility analysis.
The rule is not anticipated to have a significant economic impact
on small business entities. The number of contract awards made under
the authority of 10 U.S.C. 2913 is not currently tracked by DoD's
business systems. However, it is estimated that approximately 25 shared
energy savings projects are initiated across DoD each year, with
approximately 17 being awarded annually. It is believed that most
awards are made to large utility providers, with generally 25% or more
of the renovation and operations and maintenance work executed under
the awards being subcontracted to local small business by the utility
provider.
This rule does not create any new reporting or recordkeeping
requirements.
There are no known significant alternatives to the rule.
VI. Paperwork Reduction Act
The 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 Part 241
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR part 241 is amended as follows:
PART 241--ACQUISITION OF UTILITY SERVICES
0
1. The authority citation for part 241 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Amend section 241.103 by--
0
a. Redesignating paragraphs (2) and (3) as paragraphs (3) and (4); and
0
b. Adding a new paragraph (2).
[[Page 28735]]
The addition reads as follows:
241.103 Statutory and delegated authority.
* * * * *
(2) The contracting officer may enter into an energy savings
contract under 10 U.S.C. 2913 for a period not to exceed 25 years.
* * * * *
[FR Doc. 2016-10824 Filed 5-9-16; 8:45 am]
BILLING CODE 5001-06-P
