Defense Federal Acquisition Regulation Supplement: Pilot Program on Acquisition of Military Purpose Nondevelopmental Items (DFARS Case 2016-D014), 78012-78013 [2016-26368]

Download as PDF 78012 ACTION: Federal Register / Vol. 81, No. 214 / Friday, November 4, 2016 / Rules and Regulations V. Executive Orders 12866 and 13563 Final rule. DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to remove the acronym for contiguous United States. DATES: Effective November 4, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Julie Hammond, telephone 571–372– 6174. SUMMARY: SUPPLEMENTARY INFORMATION: I. Background DoD is amending the DFARS to remove the acronym for contiguous United States (CONUS). While the term ‘‘contiguous United States (CONUS)’’ is defined in Federal Acquisition Regulation (FAR) 2.101, the acronym is sometimes misinterpreted as ‘‘continental United States.’’ Spelling out the acronym in the DFARS will eliminate any confusion. II. Discussion and Analysis DFARS 274.301 is amended to update the reference to transportation guidance in DFARS Procedures, Guidance, and Information and, as a result, remove the acronym CONUS. DFARS 274.301–71 is amended to spell out ‘‘the contiguous United States’’ in lieu of CONUS. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items asabaliauskas on DSK3SPTVN1PROD with RULES The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501–1, and 41 U.S.C. 1707 does not require publication for public comment. VII. 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). Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 247 is amended as follows: The statute that applies to the publication of the FAR is 41 U.S.C. 1707 entitled ‘‘Publication of Proposed Regulations.’’ Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is just removing and spelling out the acronym for ‘‘contiguous United States’’. Jkt 241001 VI. Regulatory Flexibility Act Government procurement. IV. Publication of This Final Rule for Public Comment Is Not Required by Statute 21:31 Nov 03, 2016 Defense Acquisition Regulations System List of Subjects in 48 CFR Part 247 This case does not add any new provisions or clauses or impact any existing provisions or clauses. VerDate Sep<11>2014 DEPARTMENT OF DEFENSE 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. PART 247—TRANSPORTATION 1. The authority citation for 48 CFR part 247 continues to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 247.301 [Amended] 2. In section 247.301, remove the phrase ‘‘that require shipments to destinations outside CONUS’’. ■ 247.301–71 [Amended] 3. In section 247.301–71, remove ‘‘outside CONUS’’ and add ‘‘outside the contiguous United States’’ in its place. ■ [FR Doc. 2016–26367 Filed 11–3–16; 8:45 am] BILLING CODE 5001–06–P PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 48 CFR Parts 212 and 252 [Docket DARS–2016–0015] RIN 0750–AI93 Defense Federal Acquisition Regulation Supplement: Pilot Program on Acquisition of Military Purpose Nondevelopmental Items (DFARS Case 2016–D014) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. AGENCY: DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that changes the criteria for the pilot program for acquisition of military purpose nondevelopmental items. DATES: Effective November 4, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571–372–6093. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DoD published an interim rule in the Federal Register at 80 FR 42557 on June 30, 2016, to implement section 892 of the National Defense Authorization Action (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114–92). Section 892 removes the requirements under the pilot program for the use of competitive procedures and for awards to be made to nontraditional defense contractors. Section 892 also increases the threshold for use of the pilot program to contracts up to $100 million. Two respondents submitted public comments in response to the interim rule. 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 is provided, as follows: A. Summary of Significant Changes From the Interim Rule One change is made in the final rule as a result of a public comment. The prescription at DFARS 212.7103 for DFARS provision 252.212–7002, Pilot Program for Acquisition of MilitaryPurpose Nondevelopmental Items, is revised to clarify its use in solicitations E:\FR\FM\04NOR6.SGM 04NOR6 Federal Register / Vol. 81, No. 214 / Friday, November 4, 2016 / Rules and Regulations to the acquisition of commercial items, including COTS items. when use of the pilot program is planned and the applicability criteria are met. B. Analysis of Public Comments 1. General Comment: One respondent recommended rewording the prescription at DFARS 212.7103 to clarify proper use of the provision. Response: The prescription at DFARS 212.7103 is revised to state, ‘‘Use the provision at 252.212–7002, Pilot Program for Acquisition of MilitaryPurpose Nondevelopmental Items, in solicitations when use of the pilot program is planned and the applicability criteria of 212.7102–1 are met.’’ 2. Implementation Comment: One respondent suggested revising the text at DFARS 212.7102– 1(d) to capture the removal of the requirement to use competitive procedures under the pilot program by adding, ‘‘Each contract entered into under the pilot program shall be exempt from the requirement for the use of competitive procedures.’’ Response: The respondent’s suggestion is outside the scope of the authority provided by section 892. The statute removes the requirement that each contract under the pilot program be awarded using the competitive procedures at 10 U.S.C. chapter 137. Section 892 does not provide any further exemptions to the competition requirements outlined in the FAR and DFARS. The interim rule accomplishes the goal of section 892 by removing from the applicability criteria for the pilot program at DFARS 212.7102–1 the requirement to award using competitive procedures. No additional text is required. asabaliauskas on DSK3SPTVN1PROD with RULES III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items The requirements of section 892 of the NDAA for FY 2016 do not apply to contracts at or below the SAT. Additionally, while FAR part 12 commercial procedures may be used to acquire military purpose nondevelopmental items under this pilot program, the rule does not apply VerDate Sep<11>2014 21:31 Nov 03, 2016 Jkt 241001 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 implement section 892 of the National Defense Authorization Act for Fiscal Year 2016. The objective of the rule is to modify the criteria for the pilot program at DFARS 212.71, Pilot Program for the Acquisition of Military Purpose Nondevelopmental Items, to increase the opportunities for use of the program. The rule removes the criteria that contracts must be awarded to ‘‘nontraditional defense contractors’’ and awards must be made using competitive procedures. The rule also increases the dollar threshold for the program to allow use on procurements up to $100 million. There were no significant issues raised by the public in response to the initial regulatory flexibility analysis provided in the interim rule. The changes to the pilot program will have a positive economic impact on small businesses that did not meet the definition of ‘‘nontraditional defense contractors’’ and have developed products that could be applied to a military purpose. According to data available in the Federal Procurement PO 00000 Frm 00007 Fmt 4701 Sfmt 9990 78013 Data System for FY 2015, 6,514 unique small businesses were awarded a DoD contract in excess of the certified cost and pricing threshold ($750,000) and therefore did not meet the definition of ‘‘nontraditional defense contractor.’’ Prior to the changes made by this rule these small businesses were not eligible for an award under the pilot program. These small businesses will now be able to participate in the pilot program if they are developing a military purpose nondevelopmental item. This rule does not impose any new reporting, recordkeeping, or other compliance requirements. No significant alternatives were identified during the development of this 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 Parts 212 and 252 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Accordingly, the interim rule amending 48 CFR parts 212 and 252, which was published in the Federal Register at 80 FR 42557 on June 30, 2016, is adopted as a final rule with the following change: PART 212—ACQUISITION OF COMMERCIAL ITEMS 1. The authority citation for part 212 continues to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 2. Revise section 212.7103 to read as follows: ■ 212.7103 Solicitation provision. Use the provision at 252.212–7002, Pilot Program for Acquisition of Military-Purpose Nondevelopmental Items, in solicitations when use of the pilot program is planned and the applicability criteria of 212.7102–1 are met. [FR Doc. 2016–26368 Filed 11–3–16; 8:45 am] BILLING CODE 5001–06–P E:\FR\FM\04NOR6.SGM 04NOR6

Agencies

[Federal Register Volume 81, Number 214 (Friday, November 4, 2016)]
[Rules and Regulations]
[Pages 78012-78013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26368]


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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212 and 252

[Docket DARS-2016-0015]
RIN 0750-AI93


Defense Federal Acquisition Regulation Supplement: Pilot Program 
on Acquisition of Military Purpose Nondevelopmental Items (DFARS Case 
2016-D014)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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

SUMMARY: DoD is adopting as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement a section of the National Defense Authorization Act for 
Fiscal Year 2016 that changes the criteria for the pilot program for 
acquisition of military purpose nondevelopmental items.

DATES: Effective November 4, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published an interim rule in the Federal Register at 80 FR 
42557 on June 30, 2016, to implement section 892 of the National 
Defense Authorization Action (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 
114-92). Section 892 removes the requirements under the pilot program 
for the use of competitive procedures and for awards to be made to 
nontraditional defense contractors. Section 892 also increases the 
threshold for use of the pilot program to contracts up to $100 million. 
Two respondents submitted public comments in response to the interim 
rule.

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 is provided, as follows:

A. Summary of Significant Changes From the Interim Rule

    One change is made in the final rule as a result of a public 
comment. The prescription at DFARS 212.7103 for DFARS provision 
252.212-7002, Pilot Program for Acquisition of Military-Purpose 
Nondevelopmental Items, is revised to clarify its use in solicitations

[[Page 78013]]

when use of the pilot program is planned and the applicability criteria 
are met.

B. Analysis of Public Comments

1. General
    Comment: One respondent recommended rewording the prescription at 
DFARS 212.7103 to clarify proper use of the provision.
    Response: The prescription at DFARS 212.7103 is revised to state, 
``Use the provision at 252.212-7002, Pilot Program for Acquisition of 
Military-Purpose Nondevelopmental Items, in solicitations when use of 
the pilot program is planned and the applicability criteria of 
212.7102-1 are met.''
2. Implementation
    Comment: One respondent suggested revising the text at DFARS 
212.7102-1(d) to capture the removal of the requirement to use 
competitive procedures under the pilot program by adding, ``Each 
contract entered into under the pilot program shall be exempt from the 
requirement for the use of competitive procedures.''
    Response: The respondent's suggestion is outside the scope of the 
authority provided by section 892. The statute removes the requirement 
that each contract under the pilot program be awarded using the 
competitive procedures at 10 U.S.C. chapter 137. Section 892 does not 
provide any further exemptions to the competition requirements outlined 
in the FAR and DFARS. The interim rule accomplishes the goal of section 
892 by removing from the applicability criteria for the pilot program 
at DFARS 212.7102-1 the requirement to award using competitive 
procedures. No additional text is required.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    The requirements of section 892 of the NDAA for FY 2016 do not 
apply to contracts at or below the SAT. Additionally, while FAR part 12 
commercial procedures may be used to acquire military purpose 
nondevelopmental items under this pilot program, the rule does not 
apply to the acquisition of commercial items, including COTS items.

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 implement section 892 of the National Defense 
Authorization Act for Fiscal Year 2016. The objective of the rule is to 
modify the criteria for the pilot program at DFARS 212.71, Pilot 
Program for the Acquisition of Military Purpose Nondevelopmental Items, 
to increase the opportunities for use of the program. The rule removes 
the criteria that contracts must be awarded to ``nontraditional defense 
contractors'' and awards must be made using competitive procedures. The 
rule also increases the dollar threshold for the program to allow use 
on procurements up to $100 million.
    There were no significant issues raised by the public in response 
to the initial regulatory flexibility analysis provided in the interim 
rule.
    The changes to the pilot program will have a positive economic 
impact on small businesses that did not meet the definition of 
``nontraditional defense contractors'' and have developed products that 
could be applied to a military purpose. According to data available in 
the Federal Procurement Data System for FY 2015, 6,514 unique small 
businesses were awarded a DoD contract in excess of the certified cost 
and pricing threshold ($750,000) and therefore did not meet the 
definition of ``nontraditional defense contractor.'' Prior to the 
changes made by this rule these small businesses were not eligible for 
an award under the pilot program. These small businesses will now be 
able to participate in the pilot program if they are developing a 
military purpose nondevelopmental item.
    This rule does not impose any new reporting, recordkeeping, or 
other compliance requirements. No significant alternatives were 
identified during the development of this 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 Parts 212 and 252

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
    Accordingly, the interim rule amending 48 CFR parts 212 and 252, 
which was published in the Federal Register at 80 FR 42557 on June 30, 
2016, is adopted as a final rule with the following change:

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
1. The authority citation for part 212 continues to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

0
2. Revise section 212.7103 to read as follows:


212.7103   Solicitation provision.

    Use the provision at 252.212-7002, Pilot Program for Acquisition of 
Military-Purpose Nondevelopmental Items, in solicitations when use of 
the pilot program is planned and the applicability criteria of 
212.7102-1 are met.

[FR Doc. 2016-26368 Filed 11-3-16; 8:45 am]
 BILLING CODE 5001-06-P