Defense Federal Acquisition Regulation Supplement: Use of Commercial or Non-Government Standards (DFARS Case 2017-D014), 4366-4368 [2019-02524]
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4366
Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Rules and Regulations
item or contract option shall not exceed
$100 million in fiscal year 2017
constant dollars. (10 U.S.C. 2302e)
PART 235—RESEARCH AND
DEVELOPMENT CONTRACTING
5. Section 235.006–71 is amended
by—
■ a. Redesignating the introductory text
as paragraph (b); and
■ b. Adding paragraph (a).
The addition reads as follows:
■
235.006—71
Competition.
(a) Use of a broad agency
announcement with peer or scientific
review for the award of science and
technology proposals in accordance
with 235.016(a) fulfills the requirement
for full and open competition (see
206.102(d)(2)).
*
*
*
*
*
■ 6. Section 235.016 is added to read as
follows:
235.016
Broad agency announcement.
(a) General. A broad agency
announcement with peer or scientific
review may be used for the award of
science and technology proposals.
Science and technology proposals
include proposals for the following:
(i) Basic research (budget activity 6.1).
(ii) Applied research (budget activity
6.2).
(iii) Advanced technology
development (budget activity 6.3).
(iv) Advanced component
development and prototypes (budget
activity 6.4).
[FR Doc. 2019–02527 Filed 2–14–19; 8:45 am]
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)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
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AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
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I. Background
DoD published a proposed rule in the
Federal Register at 83 FR 30644 on June
29, 2018, to implement section 875(c) of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 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 or Government-unique
specifications and standards. Four
respondents submitted comments on the
proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments received
and any changes made to the rule are
provided as follows:
A. Summary of Significant Changes
There were no changes from the
proposed rule made in the final rule as
a result of the public comments.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Two respondents provided
support for the proposed rule.
Response: DoD acknowledges the
support for the rule.
BILLING CODE 5001–06–P
SUMMARY:
Fiscal Year 2017 by encouraging offerors
to propose commercial or nonGovernment standards and industrywide practices that meet the intent of
military or Government-unique
specifications and standards.
DATES: Effective February 15, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly Bass, telephone 571–372–
6174.
SUPPLEMENTARY INFORMATION:
2. Section 875 Implementation
Comment: Several respondents shared
concerns with DoD’s implementation of
section 875 of the NDAA for FY 2017,
regarding how standards would be
added to the Acquisition Streamlining
and Standardization Information System
(ASSIST) database in order to
implement the statutory requirements.
The respondents also recommended
revisions to the rule to allow contractors
to propose equally effective standards
and supporting data for reliance upon
standards that meet the intent of the
Government’s requirements and to
require the Government to determine
that a commercial or non-Government
requirement does not meet a military
specification or standard.
Response: Maintenance of the ASSIST
database is beyond the scope of this
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rule. Questions regarding standards and
the ASSIST database should be directed
to the Defense Standardization Program
Office. Contact information is available
at https://www.dsp.dla.mil/ContactUs1/. Removing the prohibition at
DFARS 211.107(b) on DoD using
Federal Acquisition Regulation (FAR)
52.211–7, Alternatives to GovernmentUnique Standards, allows offerors to
propose standards as alternatives, as
intended. The language in the rule
meets the intent of the statute at section
875(c) of the NDAA for FY 2017.
3. ASSIST Database Instructions
Comment: One respondent supported
the use of the ASSIST database as a
repository of voluntary consensus
standards adopted by DoD and
recommended additional instructions
and clarification on how nonGovernment standards are selected for
inclusion in the database.
Response: Maintenance or
modification of the ASSIST database is
beyond the scope of this rule. Questions
regarding standards and the ASSIST
database should be directed to the
Defense Standardization Program Office.
Contact information is available at
https://www.dsp.dla.mil/Contact-Us1/.
4. Applicability
Comment: Three respondents were
concerned by the limitation on
applicability of section 875 of the
NDAA for FY 2017 requirements to
contracts over the simplified acquisition
threshold (SAT) and noncommercial
contracts.
Response: Section III of this final rule
preamble clarifies that the rule does not
exclude solicitations for contracts
valued at or below the SAT. No change
to the text of the rule is required, since
the proposed rule did not include a
limitation to contracts valued above the
SAT in the clause prescription. This
rule, however, is not applicable to
commercial contracts, including COTS,
since Government- or military-unique
specifications and standards should not
be used in commercial contracts.
5. Use of FAR Provision 52.211–7
Comment: One respondent was
concerned that the existing solicitation
provision at FAR 52.211–7, Alternatives
to Government-Unique Standards, uses
a different standard in determining
whether the standard proposed by the
contractor is acceptable. The respondent
was also concerned the rule required
burden of proof from the contractor to
demonstrate the contractor’s proposed
standard meets the Government’s
requirement.
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Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Rules and Regulations
Response: Although the statute uses
the phrase ‘‘encourage contractors to
propose commercial or non-Government
standards and industry-wide practices
that meet the intent of the military
specifications and standards,’’ DoD
retains the responsibility to ensure the
requirements are met. Although offerors
are encouraged to propose alternative
standards, they must be subject to DoD’s
review and approval. DoD standards
ensure that essential mission
requirements are met. It is the offeror’s
responsibility to demonstrate that its
proposed alternative standards meet the
essential DoD mission requirements.
6. Revise DFARS Clause 252.211–7005
Comment: One respondent
recommended revising DFARS clause
252.211–7005, Substitutions for Military
or Federal Specifications and Standards,
to meet the intent of the requirements in
section 875.
Response: The rule revises the
prescription to require the use of the
provision at FAR 52.211–7 when
Government-unique specifications and
standards are included in DoD
solicitations; use of this provision was
previously optional. This approach
meets the intent of section 875
requirements.
7. Revise DFARS 211.201
Comment: One respondent
recommended revising DFARS 211.201
to add the new requirements established
in section 875, which require military
specifications to be used in acquisitions
only to define an exact design solution
when there is no acceptable commercial
or non-Government standard, or when
the use of a commercial or nonGovernment standard is not cost
effective.
Response: DoD has determined it is
unnecessary to revise DFARS 211.201,
since the rule removes the prohibition at
DFARS 211.107(b). This rule requires
DoD to use FAR provision 52.211–7 to
permit offerors to propose commercial
or non-Government standards and
industry-wide practices.
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C. Other Changes
A reference to section 875(c) of the
NDAA for FY 2017 is added at
211.107(b) and a minor editorial change
is made to DFARS 211.201 to revise the
name of the database from ‘‘DLA
ASSIST database’’ to ‘‘ASSIST
database’’.
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III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and Contracts for
Commercial Items, Including
Commercially Available Off-the-Shelf
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 offerors
to propose commercial or nonGovernment standards and industrywide practices that meet the intent of
military or Government-unique
specifications and standards. The rule
does not add any new provisions or
clauses; however, to comply with
section 875(c), the rule requires DoD
contracting officers to use the provision
at FAR 52.211–7 in DoD solicitations
that include military or Governmentunique specifications and standards.
A. Applicability to Contracts at or Below
the Simplified Acquisition Threshold
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 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 Principal
Director, Defense Pricing and
Contracting (DPC), 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.
In accordance with 41 U.S.C. 1905,
the Principal Director, DPC, has
determined that it would not be in the
best interest of the Federal Government
to exempt acquisitions not greater than
the SAT from the requirements of
section 875(c) of the NDAA for FY 2017.
This rule prescribes the use of the
provision at FAR 52.211–7 in DoD
solicitations that include military or
Government-unique specifications and
standards, which include those for
acquisitions valued at or below the SAT.
It is possible that contracts valued at or
below this threshold (currently
$250,000), could contain military or
Government-unique specifications or
standards; therefore, it is necessary and
appropriate to include this provision in
such contracts in order to give potential
offerors an opportunity to propose
alternatives to such specifications and
standards. Providing such opportunities
to offerors may increase competition
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4367
and ultimately drive down costs
associated with compliance with
military or Government-unique
specifications and standards.
B. Applicability to Contracts and
Subcontracts for the Procurement of
Commercial Items, Including
Commercially Available Off-the-Shelf
Items
10 U.S.C. 2375 governs the
applicability of Defense-unique statutes
to contracts and subcontracts for
procurement of commercial items,
including commercially available offthe-shelf (COTS) items. It is intended to
limit the applicability of these laws to
such contracts or subcontracts. 10
U.S.C. 2375(b)(2) provides that if a
provision of law contains criminal or
civil penalties, or if the Under Secretary
of Defense for Acquisition and
Sustainment makes a written
determination that it is not in the best
interest of the Department of Defense to
exempt contracts for the procurement of
commercial items, then the provision of
law will apply to contracts for the
procurement of commercial items. 10
U.S.C. 2375(c)(2) and (d)(2) make
similar provisions for subcontracts
under contracts for the procurement of
commercial items, and for the
procurement of commercially available
off-the-shelf (COTS) items.
Determinations in accordance with 10
U.S.C. 2375 have not been made. This
rule does not prescribe the provision at
FAR 52.211–7 for use in solicitations
issued using FAR part 12 procedures for
the acquisition of commercial items,
including COTS, since such contracts
should not include military or
Government-unique specifications or
standards.
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.
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Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Rules and Regulations
DEPARTMENT OF DEFENSE
This final rule is an E.O. 13771
regulatory action, because this rule is
not significant under E.O. 12866.
statute. DoD considers the approach
described in the rule to be the most
practical and beneficial for both
Government and industry.
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
48 CFR Parts 212, 215, 239, and 252
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 implements section
875(c) of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2017 (Pub. L. 114–328). The
objective of this rule is to require the
use of FAR 52.211–7, Alternatives to
Government-Unique Standards, in DoD
solicitations 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.
There were no significant issues
raised by the public in response to the
initial regulatory flexibility analysis.
Based on Federal Procurement Data
System data for Product Service Code
5342 (hardware, weapon systems), this
rule could potentially apply to
approximately 710 unique entities, of
which 565 are small businesses. This is
based on the number of DoD contract
awards in FY 2017. However, of that
total, and 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). Accordingly,
DoD estimates that this rule will have
limited impact. Given the fact that some
small number of DoD solicitations may
include a military or Governmentunique specification or standard
generally limited to those involving a
major weapons system, this rule
provides a means for offerors to propose
alternatives on a given solicitation.
This rule contains reporting and
recordkeeping requirements for those
entities that, in response to a DoD
solicitation containing military or
Government-unique standards, wish to
propose voluntary consensus standards
that meet the Government’s
requirements as alternatives to the
Government-unique standards. The
professional skill sets required are those
of mid-level administrative personnel.
There are no known significant
alternative approaches to the rule that
would meet the requirements of the
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.
[Docket DARS–2019–0002]
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V. Executive Orders 13771
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List of Subjects in 48 CFR Part 211
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR part 211 is
amended as follows:
PART 211—DESCRIBING AGENCY
NEEDS
1. The authority citation for part 211
continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
2. Revise section 211.107 to read as
follows:
■
211.107
Solicitation provision.
(b) To comply with section 875(c) of
the National Defense Authorization Act
for Fiscal Year 2017 (Pub. L. 114–328),
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.
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
ASSIST database, including DoD
adoption notices on voluntary
consensus standards.
[FR Doc. 2019–02524 Filed 2–14–19; 8:45 am]
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Defense Acquisition Regulations
System
RIN 0750–AK26
Defense Federal Acquisition
Regulation Supplement: Extension of
Supply Chain Risk Management
Authority (DFARS Case 2018–D072)
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 implement a section of the
National Defense Authorization Act for
Fiscal Year 2019.
DATES: Effective February 15, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly R. Ziegler, telephone 571–
372–6095.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD is amending the DFARS to
implement section 881 of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2019 (Pub. L. 115–232).
Section 881 codifies the authority for
information relating to supply chain risk
at 10 U.S.C. 2339a and repeals the
sunset date at sections 806(g) of the
NDAA for FY 2011 (Pub. L. 111–383), as
modified by section 806(a) of the NDAA
for FY 2013 (Pub. L. 112–239), making
the authority permanent.
DoD published a final rule (DFARS
Case 2012–D050) in the Federal
Register at 80 FR 67243 on October 30,
2015, to implement section 806 of the
NDAA for FY 2011, as amended by
section 806 of the NDAA for FY 2013
(Pub. L. 112–239). The objective of the
rule was to minimize the potential risk
for supplies and services purchased by
DoD to maliciously degrade the integrity
and operation of sensitive information
technology systems. The rule
implemented the use of supply chain
risk as an evaluation factor in
information technology procurements
for services or supplies as a covered
system, as a part of a covered system, or
in support of a covered system. DFARS
provision 252.239–7017, Notice of
Supply Chain Risk, and DFARS clause
252.239–7018, Supply Chain Risk, were
added to inform contractors of the
requirement to mitigate supply chain
risk in the provision of supplies and
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]]>Agencies
[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Rules and Regulations]
[Pages 4366-4368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02524]
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement a section of the
National Defense Authorization Act for Fiscal Year 2017 by encouraging
offerors to propose commercial or non-Government standards and
industry-wide practices that meet the intent of military or Government-
unique specifications and standards.
DATES: Effective February 15, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Bass, telephone 571-372-
6174.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 83 FR
30644 on June 29, 2018, to implement section 875(c) of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 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 or Government-
unique specifications and standards. Four respondents submitted
comments on the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments received and any changes made to the
rule are provided as follows:
A. Summary of Significant Changes
There were no changes from the proposed rule made in the final rule
as a result of the public comments.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Two respondents provided support for the proposed rule.
Response: DoD acknowledges the support for the rule.
2. Section 875 Implementation
Comment: Several respondents shared concerns with DoD's
implementation of section 875 of the NDAA for FY 2017, regarding how
standards would be added to the Acquisition Streamlining and
Standardization Information System (ASSIST) database in order to
implement the statutory requirements. The respondents also recommended
revisions to the rule to allow contractors to propose equally effective
standards and supporting data for reliance upon standards that meet the
intent of the Government's requirements and to require the Government
to determine that a commercial or non-Government requirement does not
meet a military specification or standard.
Response: Maintenance of the ASSIST database is beyond the scope of
this rule. Questions regarding standards and the ASSIST database should
be directed to the Defense Standardization Program Office. Contact
information is available at https://www.dsp.dla.mil/Contact-Us1/.
Removing the prohibition at DFARS 211.107(b) on DoD using Federal
Acquisition Regulation (FAR) 52.211-7, Alternatives to Government-
Unique Standards, allows offerors to propose standards as alternatives,
as intended. The language in the rule meets the intent of the statute
at section 875(c) of the NDAA for FY 2017.
3. ASSIST Database Instructions
Comment: One respondent supported the use of the ASSIST database as
a repository of voluntary consensus standards adopted by DoD and
recommended additional instructions and clarification on how non-
Government standards are selected for inclusion in the database.
Response: Maintenance or modification of the ASSIST database is
beyond the scope of this rule. Questions regarding standards and the
ASSIST database should be directed to the Defense Standardization
Program Office. Contact information is available at https://www.dsp.dla.mil/Contact-Us1/.
4. Applicability
Comment: Three respondents were concerned by the limitation on
applicability of section 875 of the NDAA for FY 2017 requirements to
contracts over the simplified acquisition threshold (SAT) and
noncommercial contracts.
Response: Section III of this final rule preamble clarifies that
the rule does not exclude solicitations for contracts valued at or
below the SAT. No change to the text of the rule is required, since the
proposed rule did not include a limitation to contracts valued above
the SAT in the clause prescription. This rule, however, is not
applicable to commercial contracts, including COTS, since Government-
or military-unique specifications and standards should not be used in
commercial contracts.
5. Use of FAR Provision 52.211-7
Comment: One respondent was concerned that the existing
solicitation provision at FAR 52.211-7, Alternatives to Government-
Unique Standards, uses a different standard in determining whether the
standard proposed by the contractor is acceptable. The respondent was
also concerned the rule required burden of proof from the contractor to
demonstrate the contractor's proposed standard meets the Government's
requirement.
[[Page 4367]]
Response: Although the statute uses the phrase ``encourage
contractors to propose commercial or non-Government standards and
industry-wide practices that meet the intent of the military
specifications and standards,'' DoD retains the responsibility to
ensure the requirements are met. Although offerors are encouraged to
propose alternative standards, they must be subject to DoD's review and
approval. DoD standards ensure that essential mission requirements are
met. It is the offeror's responsibility to demonstrate that its
proposed alternative standards meet the essential DoD mission
requirements.
6. Revise DFARS Clause 252.211-7005
Comment: One respondent recommended revising DFARS clause 252.211-
7005, Substitutions for Military or Federal Specifications and
Standards, to meet the intent of the requirements in section 875.
Response: The rule revises the prescription to require the use of
the provision at FAR 52.211-7 when Government-unique specifications and
standards are included in DoD solicitations; use of this provision was
previously optional. This approach meets the intent of section 875
requirements.
7. Revise DFARS 211.201
Comment: One respondent recommended revising DFARS 211.201 to add
the new requirements established in section 875, which require military
specifications to be used in acquisitions only to define an exact
design solution when there is no acceptable commercial or non-
Government standard, or when the use of a commercial or non-Government
standard is not cost effective.
Response: DoD has determined it is unnecessary to revise DFARS
211.201, since the rule removes the prohibition at DFARS 211.107(b).
This rule requires DoD to use FAR provision 52.211-7 to permit offerors
to propose commercial or non-Government standards and industry-wide
practices.
C. Other Changes
A reference to section 875(c) of the NDAA for FY 2017 is added at
211.107(b) and a minor editorial change is made to DFARS 211.201 to
revise the name of the database from ``DLA ASSIST database'' to
``ASSIST database''.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and Contracts for Commercial Items, Including Commercially
Available Off-the-Shelf 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
offerors to propose commercial or non-Government standards and
industry-wide practices that meet the intent of military or Government-
unique specifications and standards. The rule does not add any new
provisions or clauses; however, to comply with section 875(c), the rule
requires DoD contracting officers to use the provision at FAR 52.211-7
in DoD solicitations that include military or Government-unique
specifications and standards.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
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 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 Principal Director, Defense Pricing and Contracting (DPC), 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.
In accordance with 41 U.S.C. 1905, the Principal Director, DPC, has
determined that it would not be in the best interest of the Federal
Government to exempt acquisitions not greater than the SAT from the
requirements of section 875(c) of the NDAA for FY 2017. This rule
prescribes the use of the provision at FAR 52.211-7 in DoD
solicitations that include military or Government-unique specifications
and standards, which include those for acquisitions valued at or below
the SAT. It is possible that contracts valued at or below this
threshold (currently $250,000), could contain military or Government-
unique specifications or standards; therefore, it is necessary and
appropriate to include this provision in such contracts in order to
give potential offerors an opportunity to propose alternatives to such
specifications and standards. Providing such opportunities to offerors
may increase competition and ultimately drive down costs associated
with compliance with military or Government-unique specifications and
standards.
B. Applicability to Contracts and Subcontracts for the Procurement of
Commercial Items, Including Commercially Available Off-the-Shelf Items
10 U.S.C. 2375 governs the applicability of Defense-unique statutes
to contracts and subcontracts for procurement of commercial items,
including commercially available off-the-shelf (COTS) items. It is
intended to limit the applicability of these laws to such contracts or
subcontracts. 10 U.S.C. 2375(b)(2) provides that if a provision of law
contains criminal or civil penalties, or if the Under Secretary of
Defense for Acquisition and Sustainment makes a written determination
that it is not in the best interest of the Department of Defense to
exempt contracts for the procurement of commercial items, then the
provision of law will apply to contracts for the procurement of
commercial items. 10 U.S.C. 2375(c)(2) and (d)(2) make similar
provisions for subcontracts under contracts for the procurement of
commercial items, and for the procurement of commercially available
off-the-shelf (COTS) items.
Determinations in accordance with 10 U.S.C. 2375 have not been
made. This rule does not prescribe the provision at FAR 52.211-7 for
use in solicitations issued using FAR part 12 procedures for the
acquisition of commercial items, including COTS, since such contracts
should not include military or Government-unique specifications or
standards.
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.
[[Page 4368]]
V. Executive Orders 13771
This final rule is an E.O. 13771 regulatory action, because this
rule is not significant under E.O. 12866.
VI. 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 implements section 875(c) of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328).
The objective of this rule is to require the use of FAR 52.211-7,
Alternatives to Government-Unique Standards, in DoD solicitations 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.
There were no significant issues raised by the public in response
to the initial regulatory flexibility analysis.
Based on Federal Procurement Data System data for Product Service
Code 5342 (hardware, weapon systems), this rule could potentially apply
to approximately 710 unique entities, of which 565 are small
businesses. This is based on the number of DoD contract awards in FY
2017. However, of that total, and 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). Accordingly, DoD estimates that this rule will
have limited impact. Given the fact that some small number of DoD
solicitations may include a military or Government-unique specification
or standard generally limited to those involving a major weapons
system, this rule provides a means for offerors to propose alternatives
on a given solicitation.
This rule contains reporting and recordkeeping requirements for
those entities that, in response to a DoD solicitation containing
military or Government-unique standards, wish to propose voluntary
consensus standards that meet the Government's requirements as
alternatives to the Government-unique standards. The professional skill
sets required are those of mid-level administrative personnel.
There are no known significant alternative approaches to the rule
that would meet the requirements of the statute. DoD considers the
approach described in the rule to be the most practical and beneficial
for both Government and industry.
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.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR part 211 is 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) To comply with section 875(c) of the National Defense
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), 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 ASSIST database,
including DoD adoption notices on voluntary consensus standards.
[FR Doc. 2019-02524 Filed 2-14-19; 8:45 am]
BILLING CODE 5000-06-P
