Defense Federal Acquisition Regulation Supplement: Competition for Religious-Related Services Contracts (DFARS Case 2016-D015), 93875-93878 [2016-30597]
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Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Proposed Rules
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because, as a limited FIP establishing
PSD regulatory requirements for the
PM2.5 NAAQS for certain sources
located in the North Coast Unified
AQMD, it implements a previously
promulgated federal standard.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act
Air pollution control, Environmental
protection, Incorporation by Reference,
Intergovernmental relations, Lead,
Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide.
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1. The authority citation for part 52
continues to read as follows:
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Authority: 42 U.S.C. 7401 et seq.
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(b) * * *
(2) * * *
(v) Those projects that are major
stationary sources or major
modifications for emissions of PM2.5 or
its precursors under § 52.21, and those
projects that are major stationary
sources under § 52.21 with the potential
to emit PM2.5 or its precursors at a rate
that would meet or exceed the rates
specified at § 52.21(b)(23)(i).
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48 CFR Parts 212, 213, 219, 237, and
252
[Docket DARS–2016–0034]
RIN 0750–AJ06
Defense Federal Acquisition
Regulation Supplement: Competition
for Religious-Related Services
Contracts (DFARS Case 2016–D015)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement a section of the National
Defense Authorization Act that provides
the competition requirements for
religious-related services contracts on a
U.S. military installation.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before
February 21, 2017, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2016–D015,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2015–D015.’’ Select
‘‘Comment Now’’ and follow the
instructions provided to submit a
comment. Please include ‘‘DFARS Case
2015–D015’’ on any attached
documents.
SUMMARY:
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Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2016–D015 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Lee
Renna, OUSD(AT&L)DPAP/DARS,
Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Lee Renna, telephone 571–372–6095.
SUPPLEMENTARY INFORMATION:
I. Background
Defense Acquisition Regulations
System
List of Subjects in 40 CFR Part 52
PART 52—[AMENDED]
Significant deterioration of air
DEPARTMENT OF DEFENSE
The EPA believes that this action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, lowincome populations and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
This action does not affect the level of
protection provided to human health or
the environment. With this action, the
EPA is only proposing to implement the
PSD permitting requirements mandated
by the CAA in order to ensure
compliance with the PM2.5 NAAQS and
PM2.5 increments, which were
promulgated in separate, prior
rulemakings.
For the reasons set forth in the
preamble, the EPA proposes to amend
40 CFR part 52 as follows:
§ 52.270
quality.
BILLING CODE 6560–50–P
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Dated: December 14, 2016.
Deborah Jordan,
Acting Regional Administrator, Region IX.
2. Amend § 52.270 by adding
paragraph (b)(2)(v) to read as follows:
■
[FR Doc. 2016–30768 Filed 12–21–16; 8:45 am]
This rulemaking does not involve
technical standards.
Authority: 42 U.S.C. 7401 et seq.
Subpart F—California
93875
DoD is proposing to revise the DFARS
to implement section 898 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2016 (Pub.
L. 114–92). Section 898 requires that
DoD not preclude a nonprofit
organization from competing for a
contract for religious-related services on
a U.S. military installation. Religiousrelated services typically performed on
U.S. military installations range from
choir and pastoral services, to
counseling of service members and their
families to help them deal with the
unique pressures and stresses associated
with military service. The latter
includes, but is not limited to, suicide
prevention; coping with post-traumatic
stress, depression, and sexual assault;
providing marriage and family
counseling; and providing religious and
moral guidance. The Senate Committee
Report 114–49 associated with the
NDAA for FY 2016 made the following
statement regarding the
recommendation for a provision to
ensure non-profit organizations can
compete on contracts for such religiousrelated services:
‘‘It has come to the committee’s attention
that the Department of Defense has at times
restricted competition for religious services
contracts on U.S. military installations to forprofit firms. The committee believes certain
non-profit entities such as religious
organizations can provide valuable
competition and are well-qualified to
participate in this particular category of
services and should not be precluded from
competing for these types of contracts.’’
II. Discussion and Analysis
The following changes to the DFARS
are proposed to implement section 898
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Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Proposed Rules
in a manner that minimizes the impact
on small businesses:
• A new DFARS subpart 237.7X,
Competition for Religious-Related
Services, is proposed to implement the
requirements of section 898 for the
covered services. Specifically, this
subpart establishes that a nonprofit
organization may not be precluded from
competing for contracts for religiousrelated services on a U.S. military
installation. A cross-reference to DFARS
219.270 is also provided to direct
contracting officers to guidance on the
treatment of set-asides for small
business concerns.
• A new DFARS section 219.270,
Religious-Related Services—Inclusion of
Nonprofit Organizations, is proposed to
clarify that when acquiring religiousrelated services on a U.S. military
installation, nonprofit organizations
may not be precluded from competing,
even when a small business set-aside is
used, and that none of the exceptions
for other than full and open competition
at FAR 6.302–5(b)(4) through (7) may be
used for such procurements. These
changes are necessary to ensure that
contracting officers issue solicitations
for the covered services on a
competitive basis and are aware that setasides may still be used, though offers
from nonprofit organizations may be
considered for award. In addition, this
section clarifies that if an apparently
successful offeror has not represented in
its offer that it is a small business
concern of a type that meets set-aside
requirements of the solicitation, then
the contracting officer shall verify that
the offeror is registered in the System
for Award Management (SAM) database
as a nonprofit organization.
• A new provision is proposed at
DFARS 252.219–70XX, Competition for
Religious-Related Services, which is
prescribed at DFARS 219.270 for use in
solicitations for the acquisition of
religious-related services on a U.S.
military installation that will be setaside for one of the small business
programs identified at FAR 19.000(a)(3).
The solicitation not only provides
notice to potential offerors that a
nonprofit will not be precluded from
competing for award, but also advises
nonprofit organizations that the
contracting officer will verify that it is
registered as a nonprofit organization in
SAM before considering it for award.
Conforming changes are made to DFARS
212.301(f)(vii) to ensure the provision is
also used in commercial acquisitions.
• Similar to the changes proposed at
DFARS 219.270, a new paragraph (b) is
proposed to be added to DFARS
213.7001 to direct contracting officers
not to use the sole source authority at
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FAR 6.302–5(b)(4) and not to exclude a
nonprofit organizations from
participating in competitive
procurements under the 8(a) program.
• A definition of ‘‘nonprofit
organization’’ is also provided where
the term is used in the rule. The
definition proposed in the rule is the
same as the definition provided in FAR
subpart 26.4 and the clause at 52.226–
6, Promoting Excess Food Donations to
Nonprofit Organizations. The definition
also aligns with the description of a
nonprofit organization provided in the
SAM database.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule implements section 898 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2016 (Pub.
L. 114–92). Section 898 requires that
DoD may not preclude a nonprofit
organization from competing for a
contract for religious-related services on
a U.S. military installation. The rule
creates one new provision, DFARS
252.219–70XX, Competition for
Religious-Related Services.
the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt commercial item contracts, the
provision of law will apply to contracts
for the acquisition of commercial items.
Likewise, 41 U.S.C. 1907 governs the
applicability of laws to COTS items,
with the Administrator for Federal
Procurement Policy the decision
authority to determine that it is in the
best interest of the Government to apply
a provision of law to acquisitions of
COTS items in the FAR. The Director,
DPAP, is the appropriate authority to
make comparable determinations for
regulations to be published in the
DFARS, which is part of the FAR system
of regulations.
A. Applicability to Contracts at or Below
the Simplified Acquisition Threshold
(SAT)
41 U.S.C. 1905 governs the
applicability of laws to contracts or
subcontracts in amounts not greater
than the SAT. It is intended to limit the
applicability of laws to such contracts or
subcontracts. 41 U.S.C. 1905 provides
that if a provision of law contains
criminal or civil penalties, or if the
Federal Acquisition Regulation (FAR)
Council makes a written determination
that it is not in the best interest of the
Federal Government to exempt contracts
or subcontracts at or below the SAT, the
law will apply to them. The Director,
Defense Procurement and Acquisition
Policy (DPAP), is the appropriate
authority to make comparable
determinations for regulations to be
published in the DFARS, which is part
of the FAR system of regulations.
C. Determination
DoD is proposing to apply the
requirements of section 898 to contracts
at or below the SAT and contracts for
the acquisition of commercial items, not
including COTS items. Section 898
addresses competitive acquisitions for
religious-related services to be
performed on a U.S. military
installation. It is in the best interest of
the Federal Government to apply the
rule to acquisitions not greater than the
SAT and those for the acquisition of
commercial items (excluding COTS
items), because a portion of DoD’s
acquisitions for these types of services
will result in the award of contracts at
or below the SAT or for commercial
items. An exception for contracts not
greater than the SAT or for the
acquisition of commercial items, would
exclude contracts intended to be
covered by the law, thereby
undermining the overarching public
policy purpose of the law. Since section
898 of the NDAA for FY 2016
specifically focuses on the competitive
acquisition of a service requirement, the
changes contemplated by this rule are
not applicable to contracts for COTS
items. DoD will make the final
determination with regard to
application to acquisitions below the
SAT and to those for commercial items
after receipt and analysis of public
comments.
B. Applicability to Contracts for the
Acquisition of Commercial Items,
Including Commercially Available Offthe-Shelf (COTS) Items
41 U.S.C. 1906 governs the
applicability of laws to contracts for the
acquisition of commercial items, and is
intended to limit the applicability of
laws to contracts for the acquisition of
commercial items. 41 U.S.C. 1906
provides that if a provision of law
contains criminal or civil penalties, or if
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
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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.
V. Regulatory Flexibility Act
DoD expects that this rule may 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.
Therefore, an initial regulatory
flexibility analysis has been prepared
and is summarized as follows:
The purpose of this proposed rule is
to revise the Defense Federal
Acquisition Regulation Supplement to
implement policies and procedures to
ensure that DoD does not preclude a
nonprofit organization from competing
for a contract for religious-related
services on a U.S. military installation.
This rule is necessary to implement
section 898 of the National Defense
Authorization Act for Fiscal Year (FY)
2016, which is the legal basis for the
rule.
This rule may have a significant
economic impact on a substantial
number of small businesses that
typically compete for contracts for the
covered services, since most of the
contracts awarded for religious-related
services fall within the dollar range
reserved exclusively for small business
participation (over $3,500, but no more
than $150,000). The rule may also have
a significant economic impact on
nonprofit organizations, since these
entities are normally precluded from
competing for such acquisitions that are
reserved for small business concerns.
According to data obtained from the
Federal Procurement Data System
(FPDS) for FY 2015, DoD awarded 290
contracts to 232 unique businesses for
religious-related services under the
Product Services Code (PSC) for
Chaplain Services (G002), the majority
of which (95 percent) are valued below
the simplified acquisition threshold
(SAT) of $150,000. Of those 290
contracts, approximately 160 contracts
were awarded to 130 unique small
business concerns (56 percent). The
FPDS data further indicates that of the
160 contracts awarded to small
business, 137 of the contracts were
awarded on the basis of a total small
business set-aside, including one total
set-aside to women-owned small
business concerns. In addition, in order
to carry out the Congressional mandate
of section 898, this rule restricts the use
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of the sole source authorities at FAR
6.302–5(b)(4) through (7) when
contracting for religious-related services
on U.S. military installations; as a
result, such solicitations would have to
be competed in a manner that allows
nonprofit organizations to participate.
Analysis of FPDS data for FY 2015
reveals that four contracts were awarded
to a HUBZone small business concern
on a sole source basis.
Additional FPDS data was obtained
for FY 2016, which showed DoD
awarded 256 contracts to 212 unique
businesses for religious-related services
under PSC G002, of which the majority
(91 percent) were valued below the
SAT. Of those 256 contracts, 158
contracts (62 percent) were awarded to
130 unique small business concerns (63
percent). 116 contracts were solicited
using a total small business set-aside.
Again, as a result of this rule, such
solicitations could not preclude a
nonprofit organization from submitting
an offer and being considered for award.
Six contracts were awarded on a sole
source basis under the Small Business
Act 8(a) Business Development Program
(8(a) Program); however, this rule
restricts DoD contracting officers from
using the sole source authority at FAR
6.302–5(b)(4) for the 8(a) Program to
procure religious-related services to be
performed on a U.S. military
installation. In order to comply with
section 898, any requirements currently
in the 8(a) program would be required,
upon renewal, to be solicited in a
manner that does not preclude a
nonprofit organization from the
competition.
There are no reporting, recordkeeping,
or other compliance requirements
associated with this rule. The rule does
not duplicate, overlap, or conflict with
any other Federal rule.
There are no significant alternative
approaches to the proposed rule that
would minimize the impact on small
entities and meet the stated objectives of
the statute.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities. DoD will also
consider comments from small entities
concerning the existing regulations in
subparts affected by this rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(DFARS Case 2016–D015), in
correspondence.
VI. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
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93877
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 212,
213, 219, 237, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 212, 213, 219,
237, and 252 are proposed to be
amended as follows:
■ 1. The authority citation for 48 CFR
parts 212, 213, 219, 237, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
2. Amend section 212.301 by adding
new paragraph (f)(vii)(D) to read as
follows:
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
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(f) * * *
(vii) * * *
(D) Use the provision at 252.219–
70XX, Competition for ReligiousRelated Services, as prescribed in
219.270–3.
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PART 213—SIMPLIFIED ACQUISITION
PROCEDURES
3. Amend section 213.7001 by—
a. Redesignating paragraphs (a)(1) and
(2) as paragraphs (a)(1)(i) and (ii),
respectively;
■ b. Redesignating the introductory text
as paragraph (a)(1);
■ c. Redesignating paragraph (b) as
paragraph (a)(2); and
■ d. Adding a new paragraph (b).
The addition reads as follows:
■
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213.7001
Procedures.
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(b) To comply with section 898 of the
National Defense Authorization Act for
Fiscal Year 2016 (Pub. L. 114–92),
contracting officers shall not use the
sole source authority at FAR 6.302–
5(b)(4) to purchase religious-related
services to be performed on a U.S.
military installation. For competitive
purchases under the 8(a) program,
contracting officers shall not exclude a
nonprofit organization from the
competition. See 219.270 for additional
procedures.
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Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Proposed Rules
PART 219—SMALL BUSINESS
PROGRAMS
SUBPART 237.7X—COMPETITION FOR
RELIGIOUS-RELATED SERVICES
■
4. Add sections 219.270, 219.270–1,
219.270–2, and 219.270–3 to subpart
219.2 to read as follows:
237.7X00
219.270 Religious-related services—
inclusion of nonprofit organizations.
This subpart provides policy and
guidance for the acquisition of religiousrelated services to be performed on a
U.S. military installation in accordance
with section 898 of the National Defense
Authorization Act for Fiscal Year 2016
(Pub. L. 114–92).
219.270–1
Definition.
Nonprofit organization, as used in
this section, means any organization
that is—
(1) Described in section 501(c) of the
Internal Revenue Code of 1986; and
(2) Exempt from tax under section
501(a) of that Code.
219.270–2
Procedures.
(a) To comply with section 898 of the
National Defense Authorization Act for
Fiscal Year 2016 (Pub. L. 114–92), when
acquiring religious-related services to be
performed on a U.S. military
installation—
(1) Do not preclude a nonprofit
organization from competing, even
when the acquisition is set aside for
small businesses as identified in FAR
19.000(a)(3); and
(2) Do not use any of the sole source
exceptions at FAR 6.302–5(b)(4) through
(7) for such acquisitions.
(b) If the apparently successful offeror
has not represented in its quotation or
offer that it is one of the small business
concerns identified in FAR 19.000(a)(3),
the contracting officer shall verify that
the offeror is registered in the System
for Award Management database as a
nonprofit organization.
219.270–3
Solicitation provision.
Use the provision 252.219–70XX,
Competition for Religious-Related
Services, in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, for the acquisition of
religious-related services to be
performed on U.S. military installations,
when the acquisition is set aside for any
of the small business concerns
identified in FAR 19.000(a)(3).
PART 237—Service Contracting
5. Add new subpart 237.7X to read as
follows:
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SUBPART 237.7X—COMPETITION FOR
RELIGIOUS-RELATED SERVICES
Sec.
237.7X00
237.7X01
237.7X02
Scope of subpart.
Definition.
Policy.
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237.7X01
BILLING CODE 5001–06–P
Scope of subpart.
Policy.
(a) A nonprofit organization shall not
be precluded from competing for a
contract for religious-related services to
be performed on a U.S. military
installation.
(b) See 219.270 when an acquisition
for religious-related services to be
performed on a U.S. military installation
is set aside for any of the small business
concerns identified in FAR 19.000(a)(3).
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
6. Add section 252.219–70XX to read
as follows:
■
252.219–70XX Competition for ReligiousRelated Services.
As prescribed in 219.270–3, use the
following provision: COMPETITION
FOR RELIGIOUS-RELATED SERVICES
(DATE)
(a) Definition. As used in this
provision—
Nonprofit organization means any
organization that is—
(1) Described in section 501(c) of the
Internal Revenue Code of 1986; and
(2) Exempt from tax under section
501(a) of that Code.
(b) A nonprofit organization is not
precluded from competing for a contract
for religious-related services to be
performed on a U.S. military installation
notwithstanding that a nonprofit
organization is not a small business
concern as identified in FAR
19.000(a)(3).
(c) If the apparently successful offeror
has not represented in its offer or
quotation that it is a small business
concern identified in FAR 19.000(a)(3),
as appropriate to the solicitation, the
Contracting Officer will verify that the
offeror is registered in the System for
Award Management (SAM) database as
a nonprofit organization.
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 215 and 252
[Docket DARS–2016–0004]
Definition.
As used in this subpart—
Nonprofit organization means any
organization that is—
(1) Described in section 501(c) of the
Internal Revenue Code of 1986; and
(2) Exempt from tax under section
501(a) of that Code.
237.7X02
(End of provision)
[FR Doc. 2016–30597 Filed 12–21–16; 8:45 am]
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RIN 0750–AI84
Defense Federal Acquisition
Regulation Supplement: Independent
Research and Development Expenses
(DFARS Case 2016–D017)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule; extension of
comment period.
AGENCY:
DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
ensure that substantial future
independent research and development
expenses, as a means to reduce
evaluated bid prices in competitive
source selections, are evaluated in a
uniform way during competitive source
selections. The comment period on the
proposed rule is extended 30 days.
DATES: For the proposed rule published
on November 4, 2016 (81 FR 78014),
submit comments by February 2, 2017.
ADDRESSES: Submit comments
identified by DFARS Case 2016–D017,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2016–D017.’’ Select
‘‘Comment Now’’ and follow the
instructions provided to submit a
comment. Please include ‘‘DFARS Case
2016–D017’’ on any attached
documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2016–D017 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Mr. Mark
Gomersall, OUSD(AT&L)DPAP/DARS,
Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
SUMMARY:
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]]>Agencies
[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Proposed Rules]
[Pages 93875-93878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30597]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 213, 219, 237, and 252
[Docket DARS-2016-0034]
RIN 0750-AJ06
Defense Federal Acquisition Regulation Supplement: Competition
for Religious-Related Services Contracts (DFARS Case 2016-D015)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a section of the National
Defense Authorization Act that provides the competition requirements
for religious-related services contracts on a U.S. military
installation.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before February 21, 2017, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2016-D015, using
any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2015-D015.'' Select ``Comment Now'' and follow
the instructions provided to submit a comment. Please include ``DFARS
Case 2015-D015'' on any attached documents.
[cir] Email: osd.dfars@mail.mil. Include DFARS Case 2016-D015 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Lee
Renna, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Lee Renna, telephone 571-372-6095.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement section 898 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016
(Pub. L. 114-92). Section 898 requires that DoD not preclude a
nonprofit organization from competing for a contract for religious-
related services on a U.S. military installation. Religious-related
services typically performed on U.S. military installations range from
choir and pastoral services, to counseling of service members and their
families to help them deal with the unique pressures and stresses
associated with military service. The latter includes, but is not
limited to, suicide prevention; coping with post-traumatic stress,
depression, and sexual assault; providing marriage and family
counseling; and providing religious and moral guidance. The Senate
Committee Report 114-49 associated with the NDAA for FY 2016 made the
following statement regarding the recommendation for a provision to
ensure non-profit organizations can compete on contracts for such
religious-related services:
``It has come to the committee's attention that the Department
of Defense has at times restricted competition for religious
services contracts on U.S. military installations to for-profit
firms. The committee believes certain non-profit entities such as
religious organizations can provide valuable competition and are
well-qualified to participate in this particular category of
services and should not be precluded from competing for these types
of contracts.''
II. Discussion and Analysis
The following changes to the DFARS are proposed to implement
section 898
[[Page 93876]]
in a manner that minimizes the impact on small businesses:
A new DFARS subpart 237.7X, Competition for Religious-
Related Services, is proposed to implement the requirements of section
898 for the covered services. Specifically, this subpart establishes
that a nonprofit organization may not be precluded from competing for
contracts for religious-related services on a U.S. military
installation. A cross-reference to DFARS 219.270 is also provided to
direct contracting officers to guidance on the treatment of set-asides
for small business concerns.
A new DFARS section 219.270, Religious-Related Services--
Inclusion of Nonprofit Organizations, is proposed to clarify that when
acquiring religious-related services on a U.S. military installation,
nonprofit organizations may not be precluded from competing, even when
a small business set-aside is used, and that none of the exceptions for
other than full and open competition at FAR 6.302-5(b)(4) through (7)
may be used for such procurements. These changes are necessary to
ensure that contracting officers issue solicitations for the covered
services on a competitive basis and are aware that set-asides may still
be used, though offers from nonprofit organizations may be considered
for award. In addition, this section clarifies that if an apparently
successful offeror has not represented in its offer that it is a small
business concern of a type that meets set-aside requirements of the
solicitation, then the contracting officer shall verify that the
offeror is registered in the System for Award Management (SAM) database
as a nonprofit organization.
A new provision is proposed at DFARS 252.219-70XX,
Competition for Religious-Related Services, which is prescribed at
DFARS 219.270 for use in solicitations for the acquisition of
religious-related services on a U.S. military installation that will be
set-aside for one of the small business programs identified at FAR
19.000(a)(3). The solicitation not only provides notice to potential
offerors that a nonprofit will not be precluded from competing for
award, but also advises nonprofit organizations that the contracting
officer will verify that it is registered as a nonprofit organization
in SAM before considering it for award. Conforming changes are made to
DFARS 212.301(f)(vii) to ensure the provision is also used in
commercial acquisitions.
Similar to the changes proposed at DFARS 219.270, a new
paragraph (b) is proposed to be added to DFARS 213.7001 to direct
contracting officers not to use the sole source authority at FAR 6.302-
5(b)(4) and not to exclude a nonprofit organizations from participating
in competitive procurements under the 8(a) program.
A definition of ``nonprofit organization'' is also
provided where the term is used in the rule. The definition proposed in
the rule is the same as the definition provided in FAR subpart 26.4 and
the clause at 52.226-6, Promoting Excess Food Donations to Nonprofit
Organizations. The definition also aligns with the description of a
nonprofit organization provided in the SAM database.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule implements section 898 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92).
Section 898 requires that DoD may not preclude a nonprofit organization
from competing for a contract for religious-related services on a U.S.
military installation. The rule creates one new provision, DFARS
252.219-70XX, Competition for Religious-Related Services.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT)
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to such contracts or subcontracts. 41
U.S.C. 1905 provides that if a provision of law contains criminal or
civil penalties, or if the Federal Acquisition Regulation (FAR) Council
makes a written determination that it is not in the best interest of
the Federal Government to exempt contracts or subcontracts at or below
the SAT, the law will apply to them. The Director, Defense Procurement
and Acquisition Policy (DPAP), is the appropriate authority to make
comparable determinations for regulations to be published in the DFARS,
which is part of the FAR system of regulations.
B. Applicability to Contracts for the Acquisition of Commercial Items,
Including Commercially Available Off-the-Shelf (COTS) Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial items, and is intended to limit the
applicability of laws to contracts for the acquisition of commercial
items. 41 U.S.C. 1906 provides that if a provision of law contains
criminal or civil penalties, or if the FAR Council makes a written
determination that it is not in the best interest of the Federal
Government to exempt commercial item contracts, the provision of law
will apply to contracts for the acquisition of commercial items.
Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS
items, with the Administrator for Federal Procurement Policy the
decision authority to determine that it is in the best interest of the
Government to apply a provision of law to acquisitions of COTS items in
the FAR. The Director, DPAP, is the appropriate authority to make
comparable determinations for regulations to be published in the DFARS,
which is part of the FAR system of regulations.
C. Determination
DoD is proposing to apply the requirements of section 898 to
contracts at or below the SAT and contracts for the acquisition of
commercial items, not including COTS items. Section 898 addresses
competitive acquisitions for religious-related services to be performed
on a U.S. military installation. It is in the best interest of the
Federal Government to apply the rule to acquisitions not greater than
the SAT and those for the acquisition of commercial items (excluding
COTS items), because a portion of DoD's acquisitions for these types of
services will result in the award of contracts at or below the SAT or
for commercial items. An exception for contracts not greater than the
SAT or for the acquisition of commercial items, would exclude contracts
intended to be covered by the law, thereby undermining the overarching
public policy purpose of the law. Since section 898 of the NDAA for FY
2016 specifically focuses on the competitive acquisition of a service
requirement, the changes contemplated by this rule are not applicable
to contracts for COTS items. DoD will make the final determination with
regard to application to acquisitions below the SAT and to those for
commercial items after receipt and analysis of public comments.
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
[[Page 93877]]
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.
V. Regulatory Flexibility Act
DoD expects that this rule may 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. Therefore, an initial
regulatory flexibility analysis has been prepared and is summarized as
follows:
The purpose of this proposed rule is to revise the Defense Federal
Acquisition Regulation Supplement to implement policies and procedures
to ensure that DoD does not preclude a nonprofit organization from
competing for a contract for religious-related services on a U.S.
military installation.
This rule is necessary to implement section 898 of the National
Defense Authorization Act for Fiscal Year (FY) 2016, which is the legal
basis for the rule.
This rule may have a significant economic impact on a substantial
number of small businesses that typically compete for contracts for the
covered services, since most of the contracts awarded for religious-
related services fall within the dollar range reserved exclusively for
small business participation (over $3,500, but no more than $150,000).
The rule may also have a significant economic impact on nonprofit
organizations, since these entities are normally precluded from
competing for such acquisitions that are reserved for small business
concerns.
According to data obtained from the Federal Procurement Data System
(FPDS) for FY 2015, DoD awarded 290 contracts to 232 unique businesses
for religious-related services under the Product Services Code (PSC)
for Chaplain Services (G002), the majority of which (95 percent) are
valued below the simplified acquisition threshold (SAT) of $150,000. Of
those 290 contracts, approximately 160 contracts were awarded to 130
unique small business concerns (56 percent). The FPDS data further
indicates that of the 160 contracts awarded to small business, 137 of
the contracts were awarded on the basis of a total small business set-
aside, including one total set-aside to women-owned small business
concerns. In addition, in order to carry out the Congressional mandate
of section 898, this rule restricts the use of the sole source
authorities at FAR 6.302-5(b)(4) through (7) when contracting for
religious-related services on U.S. military installations; as a result,
such solicitations would have to be competed in a manner that allows
nonprofit organizations to participate. Analysis of FPDS data for FY
2015 reveals that four contracts were awarded to a HUBZone small
business concern on a sole source basis.
Additional FPDS data was obtained for FY 2016, which showed DoD
awarded 256 contracts to 212 unique businesses for religious-related
services under PSC G002, of which the majority (91 percent) were valued
below the SAT. Of those 256 contracts, 158 contracts (62 percent) were
awarded to 130 unique small business concerns (63 percent). 116
contracts were solicited using a total small business set-aside. Again,
as a result of this rule, such solicitations could not preclude a
nonprofit organization from submitting an offer and being considered
for award. Six contracts were awarded on a sole source basis under the
Small Business Act 8(a) Business Development Program (8(a) Program);
however, this rule restricts DoD contracting officers from using the
sole source authority at FAR 6.302-5(b)(4) for the 8(a) Program to
procure religious-related services to be performed on a U.S. military
installation. In order to comply with section 898, any requirements
currently in the 8(a) program would be required, upon renewal, to be
solicited in a manner that does not preclude a nonprofit organization
from the competition.
There are no reporting, recordkeeping, or other compliance
requirements associated with this rule. The rule does not duplicate,
overlap, or conflict with any other Federal rule.
There are no significant alternative approaches to the proposed
rule that would minimize the impact on small entities and meet the
stated objectives of the statute.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities. DoD will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2016-
D015), in correspondence.
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, 213, 219, 237, and 252
Government procurement.
Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 213, 219, 237, and 252 are proposed to
be amended as follows:
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1. The authority citation for 48 CFR parts 212, 213, 219, 237, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 212.301 by adding new paragraph (f)(vii)(D) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(f) * * *
(vii) * * *
(D) Use the provision at 252.219-70XX, Competition for Religious-
Related Services, as prescribed in 219.270-3.
* * * * *
PART 213--SIMPLIFIED ACQUISITION PROCEDURES
0
3. Amend section 213.7001 by--
0
a. Redesignating paragraphs (a)(1) and (2) as paragraphs (a)(1)(i) and
(ii), respectively;
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b. Redesignating the introductory text as paragraph (a)(1);
0
c. Redesignating paragraph (b) as paragraph (a)(2); and
0
d. Adding a new paragraph (b).
The addition reads as follows:
213.7001 Procedures.
* * * * *
(b) To comply with section 898 of the National Defense
Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), contracting
officers shall not use the sole source authority at FAR 6.302-5(b)(4)
to purchase religious-related services to be performed on a U.S.
military installation. For competitive purchases under the 8(a)
program, contracting officers shall not exclude a nonprofit
organization from the competition. See 219.270 for additional
procedures.
[[Page 93878]]
PART 219--SMALL BUSINESS PROGRAMS
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4. Add sections 219.270, 219.270-1, 219.270-2, and 219.270-3 to subpart
219.2 to read as follows:
219.270 Religious-related services--inclusion of nonprofit
organizations.
219.270-1 Definition.
Nonprofit organization, as used in this section, means any
organization that is--
(1) Described in section 501(c) of the Internal Revenue Code of
1986; and
(2) Exempt from tax under section 501(a) of that Code.
219.270-2 Procedures.
(a) To comply with section 898 of the National Defense
Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), when acquiring
religious-related services to be performed on a U.S. military
installation--
(1) Do not preclude a nonprofit organization from competing, even
when the acquisition is set aside for small businesses as identified in
FAR 19.000(a)(3); and
(2) Do not use any of the sole source exceptions at FAR 6.302-
5(b)(4) through (7) for such acquisitions.
(b) If the apparently successful offeror has not represented in its
quotation or offer that it is one of the small business concerns
identified in FAR 19.000(a)(3), the contracting officer shall verify
that the offeror is registered in the System for Award Management
database as a nonprofit organization.
219.270-3 Solicitation provision.
Use the provision 252.219-70XX, Competition for Religious-Related
Services, in solicitations, including solicitations using FAR part 12
procedures for the acquisition of commercial items, for the acquisition
of religious-related services to be performed on U.S. military
installations, when the acquisition is set aside for any of the small
business concerns identified in FAR 19.000(a)(3).
PART 237--Service Contracting
0
5. Add new subpart 237.7X to read as follows:
SUBPART 237.7X--COMPETITION FOR RELIGIOUS-RELATED SERVICES
Sec.
237.7X00 Scope of subpart.
237.7X01 Definition.
237.7X02 Policy.
SUBPART 237.7X--COMPETITION FOR RELIGIOUS-RELATED SERVICES
237.7X00 Scope of subpart.
This subpart provides policy and guidance for the acquisition of
religious-related services to be performed on a U.S. military
installation in accordance with section 898 of the National Defense
Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).
237.7X01 Definition.
As used in this subpart--
Nonprofit organization means any organization that is--
(1) Described in section 501(c) of the Internal Revenue Code of
1986; and
(2) Exempt from tax under section 501(a) of that Code.
237.7X02 Policy.
(a) A nonprofit organization shall not be precluded from competing
for a contract for religious-related services to be performed on a U.S.
military installation.
(b) See 219.270 when an acquisition for religious-related services
to be performed on a U.S. military installation is set aside for any of
the small business concerns identified in FAR 19.000(a)(3).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. Add section 252.219-70XX to read as follows:
252.219-70XX Competition for Religious-Related Services.
As prescribed in 219.270-3, use the following provision:
COMPETITION FOR RELIGIOUS-RELATED SERVICES (DATE)
(a) Definition. As used in this provision--
Nonprofit organization means any organization that is--
(1) Described in section 501(c) of the Internal Revenue Code of
1986; and
(2) Exempt from tax under section 501(a) of that Code.
(b) A nonprofit organization is not precluded from competing for a
contract for religious-related services to be performed on a U.S.
military installation notwithstanding that a nonprofit organization is
not a small business concern as identified in FAR 19.000(a)(3).
(c) If the apparently successful offeror has not represented in its
offer or quotation that it is a small business concern identified in
FAR 19.000(a)(3), as appropriate to the solicitation, the Contracting
Officer will verify that the offeror is registered in the System for
Award Management (SAM) database as a nonprofit organization.
(End of provision)
[FR Doc. 2016-30597 Filed 12-21-16; 8:45 am]
BILLING CODE 5001-06-P
