Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Provision “Bonds or Other Security” (DFARS Case 2018-D036), 54679-54680 [2018-23679]

Download as PDF Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Rules and Regulations I–102 * Participant eligibility. * * * * (e) A mentor firm may not enter into an agreement with a prote´ge´ firm if SBA has made a determination of affiliation. If SBA has not made such a determination and if the DoD Office of Small Business Programs (OSBP) has reason to believe, based on SBA’s regulations regarding affiliation, that the mentor firm is affiliated with the prote´ge´ firm, then DoD OSBP will request a determination regarding affiliation from SBA. * * * * * I–106 Development of mentor-prote´ge´ agreements. * * * * * (d) * * * (6) * * * (v) Women’s business centers described in section 29 of the Small Business Act (15 U.S.C. 656). * * * * * I–107 Elements of a mentor-prote´ge´ agreement. * * * * * (h) The assistance the mentor will provide to the prote´ge´ firm in understanding Federal contract regulations, including the FAR and DFARS, after award of a subcontract under the Program, if applicable; * * * * * [FR Doc. 2018–23673 Filed 10–30–18; 8:45 am] BILLING CODE 5001–06p–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 228 and 252 [Docket DARS–2018–0049] RIN 0750–AJ98 Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Provision ‘‘Bonds or Other Security’’ (DFARS Case 2018–D036) 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 remove a provision that is no longer necessary. DATES: Effective October 31, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571–372–6093. SUPPLEMENTARY INFORMATION: amozie on DSK3GDR082PROD with RULES SUMMARY: I. Background DoD is amending the DFARS to remove DFARS provision 252.228–7004, Bonds or Other Security, and the VerDate Sep<11>2014 16:24 Oct 30, 2018 Jkt 247001 associated clause prescription at DFARS 228.170. The Miller Act (40 U.S.C. 3131 to 3134) requires contractors on certain construction contracts to post bonds that guarantee performance of the contract and payment to subcontractors and suppliers. Several Federal Acquisition Regulation (FAR) clauses are available to implement these requirements on construction contracts. While the guarantees of the Miller Act do not apply to contracts for demolition, dismantling, or removal of improvements, FAR 37.302 permits the contracting officer to require a performance bond or other security, in accordance with FAR 28.103, on such contracts when it is necessary to ensure completion of the work or protect property or payment of suppliers. For DoD, when performance bonds or other securities are necessary for contracts that involve dismantling, demolition, or removal of improvements, this DFARS provision is included in the solicitation. The provision requires offerors to furnish a bid guarantee with their offer; advises that, upon notice of award, the successful offeror shall provide the Government with the performance bond and any payment due within a set timeframe; and, identifies the acceptable sureties that can be used to support the bond. In reviewing existing FAR provisions and clauses, it was determined that FAR clause 52.228–16, Performance and Payment Bonds—Other than Construction, and FAR provision 52.228–1, Bid Guarantee, provide the information contained in the DFARS provision and can be included in solicitations and contracts that involve dismantling, demolition, or removal of improvements. The FAR clause ensures completion of the work; protects property associated with the contract effort; requires the offeror to furnish a performance bond within a set amount of time after receiving a notice of award; and, specifies that bonds must be supported by specific sureties. The FAR provision requires offerors to provide a bid guarantee prior to the opening of bids; includes the form and amount of the guarantee to be provided; advises that a resultant contract may be terminated for failure to provide an executed bond after contract award; and, states that the bid guarantee will be used to offset cost in the event of a termination for default. Since the FAR provision and clause can be used to provide the same information included in DFARS provision, this DFARS provision is no longer necessary and can be removed. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 54679 The removal of this DFARS provision supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, ‘‘Enforcing the Regulatory Reform Agenda,’’ which established a Federal policy ‘‘to alleviate unnecessary regulatory burdens’’ on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the Federal Register at 82 FR 35741 on August 1, 2017, and requested public input. No public comments were received on this provision. The DoD Task Force reviewed the requirements of DFARS provision 252.228–7004, Bonds and Other Security, and determined that the DFARS coverage was unnecessary and recommended removal. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule only removes obsolete DFARS provision 252.228–7004, Bonds or Other Security. Therefore, the rule does not impose any new requirements on contracts at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items. III. Publication of This Final Rule for Public Comment Is Not Required by Statute The statute that applies to the publication of the FAR is Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) 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 DoD is not issuing a new regulation; rather, this rule merely removes an obsolete requirement from the DFARS. E:\FR\FM\31OCR1.SGM 31OCR1 54680 Federal Register / Vol. 83, No. 211 / Wednesday, October 31, 2018 / Rules and Regulations IV. Executive Orders 12866 and 13563 PART 228—BONDS AND INSURANCE E.O. 12866, Regulatory Planning and Review, and E.O. 13563, Improving Regulation and Regulatory Review, 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. The Office of Management and Budget, Office of Information and Regulatory Affairs, has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2). 228.170 V. Executive Order 13771 This rule is not an E.O. 13771 regulatory action, because this rule is not significant under E.O. 12866. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared. 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). List of Subjects in 48 CFR Parts 228 and 252 Government procurement. amozie on DSK3GDR082PROD with RULES Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR parts 228 and 252 are amended as follows: 1. The authority citation for 48 CFR parts 228 and 252 continues to read as follows: Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. VerDate Sep<11>2014 16:24 Oct 30, 2018 Jkt 247001 [Removed] 2. Remove section 228.170. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.228–7004 [Removed and Reserved] 3. Remove and reserve section 252.228–7004. ■ [FR Doc. 2018–23679 Filed 10–30–18; 8:45 am] BILLING CODE 5001–06p–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 236 and 252 [Docket DARS–2018–0050] RIN 0750–AK03 Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause ‘‘Option for Supervision and Inspection Services’’ (DFARS Case 2018–D041) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. AGENCY: VI. Regulatory Flexibility Act ■ ■ DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove a clause that is no longer necessary. DATES: Effective October 31, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571–372–6093. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DoD is amending the DFARS to remove the DFARS clause 252.236– 7009, Option for Supervision and Inspection Services, remove the associated clause prescription at DFARS 236.609–70(a)(1), and revise a cross reference in the introductory text to DFARS clause 252.236–7011. DFARS clause 252.236–7009 is used in fixedprice solicitations and contracts for architect-engineering services when the architect may also be required to provide supervision and inspection services during construction. The clause advises contractors that the Government may, at its option, direct the contractor to perform supervision and inspection services for the construction contract. If the need for such services arises, the Government will notify the contractor in writing and the contractor shall proceed PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 with the services upon receipt of the written notification. A description of the scope of the supervision and inspection services is included as an appendix to the contract. The need for architect-engineers to perform supervision and inspection services during construction is uncommon. When it is necessary, an option that accurately describes the scope of services can be included in the contract, pursuant to Federal Acquisition Regulation subpart 17.2, Options. Contracting activities can better address these services, to the extent they are needed and the procedures applicable to the requirement, within the scope of a contract. As such, this DFARS clause is unnecessary and can be removed. The removal of this DFARS clause supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, ‘‘Enforcing the Regulatory Reform Agenda,’’ which established a Federal policy ‘‘to alleviate unnecessary regulatory burdens’’ on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the Federal Register at 82 FR 35741 on August 1, 2017, and requested public input. No public comments were received on this clause. Subsequently, the DoD Task Force reviewed the requirements of DFARS clause 252.236–7009, Option for Supervision and Inspection Services, and determined that the DFARS coverage was unnecessary and recommended removal. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule only removes obsolete DFARS clause 252.236–7009, Option for Supervision and Inspection Services. Therefore, the rule does not impose any new requirements on contracts at or below the simplified acquisition threshold and for commercial items, including commercially available offthe-shelf items. III. Publication of This Final Rule for Public Comment Is Not Required by Statute The statute that applies to the publication of the FAR is Office of E:\FR\FM\31OCR1.SGM 31OCR1

Agencies

[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]
[Rules and Regulations]
[Pages 54679-54680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23679]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 228 and 252

[Docket DARS-2018-0049]
RIN 0750-AJ98


Defense Federal Acquisition Regulation Supplement: Repeal of 
DFARS Provision ``Bonds or Other Security'' (DFARS Case 2018-D036)

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 remove a provision that is 
no longer necessary.

DATES: Effective October 31, 2018.

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

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is amending the DFARS to remove DFARS provision 252.228-7004, 
Bonds or Other Security, and the associated clause prescription at 
DFARS 228.170. The Miller Act (40 U.S.C. 3131 to 3134) requires 
contractors on certain construction contracts to post bonds that 
guarantee performance of the contract and payment to subcontractors and 
suppliers. Several Federal Acquisition Regulation (FAR) clauses are 
available to implement these requirements on construction contracts. 
While the guarantees of the Miller Act do not apply to contracts for 
demolition, dismantling, or removal of improvements, FAR 37.302 permits 
the contracting officer to require a performance bond or other 
security, in accordance with FAR 28.103, on such contracts when it is 
necessary to ensure completion of the work or protect property or 
payment of suppliers.
    For DoD, when performance bonds or other securities are necessary 
for contracts that involve dismantling, demolition, or removal of 
improvements, this DFARS provision is included in the solicitation. The 
provision requires offerors to furnish a bid guarantee with their 
offer; advises that, upon notice of award, the successful offeror shall 
provide the Government with the performance bond and any payment due 
within a set timeframe; and, identifies the acceptable sureties that 
can be used to support the bond.
    In reviewing existing FAR provisions and clauses, it was determined 
that FAR clause 52.228-16, Performance and Payment Bonds--Other than 
Construction, and FAR provision 52.228-1, Bid Guarantee, provide the 
information contained in the DFARS provision and can be included in 
solicitations and contracts that involve dismantling, demolition, or 
removal of improvements. The FAR clause ensures completion of the work; 
protects property associated with the contract effort; requires the 
offeror to furnish a performance bond within a set amount of time after 
receiving a notice of award; and, specifies that bonds must be 
supported by specific sureties. The FAR provision requires offerors to 
provide a bid guarantee prior to the opening of bids; includes the form 
and amount of the guarantee to be provided; advises that a resultant 
contract may be terminated for failure to provide an executed bond 
after contract award; and, states that the bid guarantee will be used 
to offset cost in the event of a termination for default. Since the FAR 
provision and clause can be used to provide the same information 
included in DFARS provision, this DFARS provision is no longer 
necessary and can be removed.
    The removal of this DFARS provision supports a recommendation from 
the DoD Regulatory Reform Task Force. On February 24, 2017, the 
President signed Executive Order (E.O.) 13777, ``Enforcing the 
Regulatory Reform Agenda,'' which established a Federal policy ``to 
alleviate unnecessary regulatory burdens'' on the American people. In 
accordance with E.O. 13777, DoD established a Regulatory Reform Task 
Force to review and validate DoD regulations, including the DFARS. A 
public notice of the establishment of the DFARS Subgroup to the DoD 
Regulatory Reform Task Force, for the purpose of reviewing DFARS 
provisions and clauses, was published in the Federal Register at 82 FR 
35741 on August 1, 2017, and requested public input. No public comments 
were received on this provision. The DoD Task Force reviewed the 
requirements of DFARS provision 252.228-7004, Bonds and Other Security, 
and determined that the DFARS coverage was unnecessary and recommended 
removal.

II. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule only removes obsolete DFARS provision 252.228-7004, Bonds 
or Other Security. Therefore, the rule does not impose any new 
requirements on contracts at or below the simplified acquisition 
threshold and for commercial items, including commercially available 
off-the-shelf items.

III. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is Office of 
Federal Procurement Policy statute (codified at title 41 of the United 
States Code). Specifically, 41 U.S.C. 1707(a)(1) 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 DoD is not issuing a new regulation; rather, this rule merely 
removes an obsolete requirement from the DFARS.

[[Page 54680]]

IV. Executive Orders 12866 and 13563

    E.O. 12866, Regulatory Planning and Review, and E.O. 13563, 
Improving Regulation and Regulatory Review, 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. 
The Office of Management and Budget, Office of Information and 
Regulatory Affairs, has determined that this is not a significant 
regulatory action as defined under section 3(f) of E.O. 12866 and, 
therefore, was not subject to review under section 6(b). This rule is 
not a major rule as defined at 5 U.S.C. 804(2).

V. Executive Order 13771

    This rule is not an E.O. 13771 regulatory action, because this rule 
is not significant under E.O. 12866.

VI. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

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).

List of Subjects in 48 CFR Parts 228 and 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 228 and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 228 and 252 continues to 
read as follows:

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

PART 228--BONDS AND INSURANCE


228.170   [Removed]

0
2. Remove section 228.170.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.228-7004  [Removed and Reserved]

0
3. Remove and reserve section 252.228-7004.

[FR Doc. 2018-23679 Filed 10-30-18; 8:45 am]
 BILLING CODE 5001-06p-P