Defense Federal Acquisition Regulation Supplement: Use of Commercial or Non-Government Standards (DFARS Case 2017-D014), 30644-30645 [2018-14039]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 83, Number 126 (Friday, June 29, 2018)]
[Proposed Rules]
[Pages 30644-30645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14039]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 211

[Docket DARS-2018-0021]
RIN 0750-AJ23


Defense Federal Acquisition Regulation Supplement: Use of 
Commercial or Non-Government Standards (DFARS Case 2017-D014)

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) implement a section of the National 
Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), which 
requires DoD to revise the DFARS to encourage contractors to propose 
commercial or non-Government standards and industry-wide practices that 
meet the intent of military specifications and standards.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before August 28, 2018, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2017-D014, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2017-D014.'' Select ``Comment Now'' and follow 
the instructions provided to submit a comment. Please include ``DFARS 
Case 2017-D014'' on any attached documents.
    [cir] Email: [email protected]. Include DFARS Case 2017-D014 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Mr. Mark 
Gomersall, OUSD(A&S)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 2 to 3 days after submission to verify posting (except 
allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, telephone 571-372-
6099.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to amend the DFARS to implement section 875(c) of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 
(Pub. L. 114-328). Section 875(c) requires DoD to revise the DFARS to 
encourage contractors to propose commercial or non-Government standards 
and industry-wide practices that meet the intent of military 
specifications and standards.

II. Discussion and Analysis

    DoD is proposing to amend DFARS 211.107(b) to require the use of 
Federal Acquisition Regulation (FAR) provision 52.211-7, Alternatives 
to Government-Unique Standards, in DoD solicitations and contracts that 
include military or Government-unique specifications and standards; 
and, in so doing, encourage and permit offerors to propose alternatives 
to Government-unique standards using an existing FAR provision.
    The use of FAR provision 52.211-7 is optional for agencies that 
report their use of voluntary consensus standards to the National 
Institute of Standards and Technology using the categorical reporting 
method. However, Office of Management and Budget (OMB) Circular A-119, 
Federal Participation in the Development and Use of Voluntary Consensus 
Standards and in Conformity Assessment Activities, requires, at 
paragraph 12.a.(4), that agencies using the categorical method of 
reporting method must ``Enable potential offerors to suggest voluntary 
consensus standards that can replace Government-unique standards.'' Use 
of this existing FAR provision will enable DoD to meet the intent of 
section 875(c).
    In response to OMB Circular A-119, the National Institute of 
Standards and Technology collects reports from Federal Agencies on 
their use of Government-unique standards, which is reported annually to 
Congress. DoD statistics used for that report do not differentiate 
among the many different types of Government-unique Standards. The 
overriding conceptual approach is to reduce Government reliance on 
standards produced by Government entities for their own use.
    As a matter of existing policy, DoD discourages the use of military 
specifications and standards in solicitations. As stated in DoD 
Directive 5000.01: ``When using performance-based strategies, contract 
requirements shall be stated in performance terms, limiting the use of 
military specifications and standards to Government-unique requirements 
only.'' However, to meet the intent of section 875(c) of the NDAA for 
FY 2017, DoD is proposing to amend DFARS 211.107(b) to require the use 
of FAR provision 52.211-7, Alternatives to Government-Unique Standards, 
in DoD solicitations and contracts that include military or Government-
unique specifications and standards to encourage and permit offerors to 
propose alternatives to Government-unique standards.

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

    The purpose of this rule is to implement section 875(c) of the NDAA 
for FY 2017, which requires DoD to revise the DFARS to encourage 
contractors to propose commercial or non-Government standards and 
industry-wide practices that meet the intent of military specifications 
and standards. DoD does not intend to apply the requirements of section 
875(c) to solicitations for contracts valued at or below the SAT or to 
contracts for commercial items, including COTS items, because such 
contracts do not generally include or require use of military or 
Government-unique standards or specifications.

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

[[Page 30645]]

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. Executive Order 13771

    This rule is not an E.O. 13771, Reducing Regulation and Controlling 
Regulatory Costs, regulatory action, because this rule is not 
significant under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD does 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, at 5 U.S.C. 601 et. seq. 
However, an initial regulatory flexibility analysis has been prepared 
and is summarized as follows:
    This proposed rule implements section 875(c) of the National 
Defense Authorization Act (NDAA) for FY 2017 (Pub. L. 114-328).
    The objective of this rule is to clarify the use of FAR 52.211-7, 
Alternatives to Government-Unique Standards, in DoD solicitations and 
contracts that include military or Government-unique specifications and 
standards. This will encourage and permit Offerors to propose 
alternatives to Government-unique standards by using an existing FAR 
provision. The legal basis for this rule is section 875(c) of the NDAA 
for FY 2017 (Pub. L. 114-328).
    The rule will apply to both large and small entities to the extent 
that such entities receive Government solicitations containing 
Government-unique standards and FAR provision 52.211-7, Alternatives to 
Government-unique Standards. Such entities may already be familiar with 
this provision as it has been in place since its publication in 1998 
(63 FR 68344, December 10, 1998).
    As a matter of policy, DoD discourages the use of military 
specifications and standards in solicitations. As stated in DoD 
Directive 5000.01: ``When using performance-based strategies, contract 
requirements shall be stated in performance terms, limiting the use of 
military specifications and standards to Government-unique requirements 
only.''
    In addition, between 1994 and 2000, over 29,000 military 
specifications and standards were cancelled. Of those, 6,100 were 
canceled without replacement, and 3,500 were superseded by 
nongovernment standards. Moreover, DoD participates in over 120 private 
sector standards-developing organizations such as ASTM, ANSI, ISO and 
IEEE. Voluntary consensus standards adopted by DoD are also listed in 
the Defense Logistics Agency ASSIST database to identify the source for 
obtaining the adopted standards.
    Based on Federal Procurement Data System data for product service 
code (PSC) 5342 (hardware, weapon systems), this rule could potentially 
apply to approximately 757 unique entities, of which 585 are small 
businesses. This is based on the number of DoD contract awards in 
fiscal year 2016 for PSC 5342. It cannot be discerned how many of the 
contract awards required the use of a military specification or 
standard. Further, given the DoD policy of discouraging the use of 
military specifications and standards in solicitations, this rule would 
likely impact no more than 40 offerors or potential contractors (the 
approximate number of DoD contractors involved in major weapons 
systems, which are more likely to require Government specifications).
    Accordingly, DoD estimates that this rule will have limited 
application. However, given the fact that some small number of DoD 
solicitations may include a military specification or standard--
generally limited to those involving a major weapons system, this rule 
would provide a permissive means for offerors to propose reducing 
regulatory burden on a given solicitation.
    This rule does not contain reporting and recordkeeping 
requirements, since it merely revises guidance to contracting officers 
for use of FAR clause 52.211-7, Alternatives to Government-unique 
Standards.
    As an alternative to this proposed rule, DoD could create a stand-
alone DoD provision. Such a provision, however, would largely 
duplicate, overlap, and potentially conflict with the requirements of 
the existing provision at FAR 52.211-7.
    DoD does not expect this proposed rule to have a significant 
economic impact on small entities. The rule will have a positive impact 
on both large and small contractors, in that they will now be permitted 
to propose alternatives to Government standards using an existing FAR 
provision, the same provision used for other, i.e., non-DoD Government 
solicitations.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules. There are no significant alternatives that meet the 
requirement of the statute.
    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 2017-D014), in 
correspondence.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The 
rule contains information collection requirements. OMB has cleared this 
information collection requirement under OMB control number 9000-0153, 
titled, OMB Circular A-119; FAR Sections Affected: 52.211-7 and 53.105.

List of Subjects in 48 CFR Part 211

    Government procurement.

Amy G. Williams,
Deputy, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 211 is proposed to be amended as follows:

PART 211--DESCRIBING AGENCY NEEDS

0
1. The authority citation for part 211 continues to read as follows:

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

0
2. Revise section 211.107 to read as follows:


211.107   Solicitation provision.

    (b) Use the provision at FAR 52.211-7, Alternatives to Government-
Unique Standards, in DoD solicitations that include military or 
Government-unique specifications and standards.
0
3. Revise section 211.201 to read as follows:


211.201  Identification and availability of specifications.

    Follow the procedures at PGI 211.201 for obtaining specifications, 
standards, and data item descriptions from the DLA ASSIST database, 
including DoD adoption notices on voluntary consensus standards.

[FR Doc. 2018-14039 Filed 6-28-18; 8:45 am]
 BILLING CODE 5000-06-P