Defense Federal Acquisition Regulation Supplement: Undefinitized Contract Actions (DFARS Case 2018-D008), 4429-4431 [2019-02530]
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Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Proposed Rules
determination of mobile source
emissions that, along with other
emissions in the nonattainment area,
provide for attainment of the ozone
standard, and since the Chicago
nonattainment area continues to violate
the 2008 ozone standard, we find that
Wisconsin’s VOC and NOX MVEBs are
also not acceptable.
EPA is proposing to disapprove
Wisconsin’s maintenance plan and
MVEBs for these reasons.
IV. Statutory and Executive Order
Reviews
Executive Orders 12866 and 13563:
Regulatory Planning and Review
Under Executive Orders 12866 (58 FR
51735, October 4, 1993) and 13563 (76
FR 3821, January 21, 2011), this action
is not a ‘‘significant regulatory action’’
and, therefore, is not subject to review
by the Office of Management and
Budget.
Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is not expected to be an
Executive Order 13771 regulatory action
because this action is not significant
under Executive Order 12866.
Paperwork Reduction Act
This rule does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
Regulatory Flexibility Act
This action merely proposes to
disapprove state requirements as not
meeting Federal requirements and
imposes no additional requirements
beyond those imposed by state law.
Similarly, disapproval of a
redesignation request only affects the
legal designation of an area under the
CAA and does not create any new
requirements. Accordingly, the
Administrator certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
khammond on DSKBBV9HB2PROD with PROPOSALS
Unfunded Mandates Reform Act
Because this rule proposes to
disapprove pre-existing requirements
under state law and does not impose
any additional enforceable duty beyond
that required by state law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
VerDate Sep<11>2014
17:13 Feb 14, 2019
Jkt 247001
Executive Order 13132: Federalism
This action also does not have
Federalism implications because it does
not have substantial direct effects on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
proposes to disapprove a state
requirement and a redesignation
request, and does not alter the
relationship or the distribution of power
and responsibilities established in the
CAA.
Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This rule also is not subject to
Executive Order 13045 ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it proposes to
disapprove a state requirement and
redesignation request.
Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ‘‘significant
regulatory action’’ under Executive
Order 12866 or a ‘‘significant energy
action,’’ this action is also not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001).
National Technology Transfer
Advancement Act
In reviewing state submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
state to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a state submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
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4429
EPA, when it reviews a state
submission, to use VCS in place of a
state submission that otherwise satisfies
the provisions of the CAA. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Oxides of nitrogen, Ozone, Volatile
organic compounds.
Dated: December 20, 2018.
James O. Payne,
Acting Deputy Regional Administrator,
Region 5.
[FR Doc. 2019–02352 Filed 2–14–19; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 215 and 217
[Docket DARS–2019–0004]
RIN 0750–AJ72
Defense Federal Acquisition
Regulation Supplement: Undefinitized
Contract Actions (DFARS Case 2018–
D008)
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 for Fiscal
Year 2017 and a section of the National
Defense Authorization Act for Fiscal
Year 2018 to revise requirements for
definitizing undefinitized contract
actions.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before April
16, 2019, to be considered in the
formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2018–D008,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2018–D008.’’ Select
‘‘Comment Now’’ and follow the
instructions provided to submit a
comment. Please include ‘‘DFARS Case
2018–D008’’ on any attached
documents.
SUMMARY:
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4430
Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Proposed Rules
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D008 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Amy
Williams, OUSD(A&S)DPC/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.
Amy Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS
to implement section 811 of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2017 (Pub.
L. 114–328) and section 815 of the
NDAA for FY 2018 (Pub. L. 115–91).
Section 811 modifies restrictions on
undefinitized contractual actions (UCA)
regarding risk based profit, time for
definitization, and foreign military
sales. Section 815 establishes
limitations on unilateral definitizations
of UCAs over $50 million.
khammond on DSKBBV9HB2PROD with PROPOSALS
II. Discussion and Analysis
This rule proposes to make the
following amendments to DFARS:
• If a UCA is definitized after the end
of the 180-day period beginning on the
date the contractor submits a qualifying
proposal, the head of the agency shall
ensure profit reflects the cost risk of the
contractor as such risk existed on the
date the contractor submitted the
qualifying proposal.
• The definitization of a UCA may
not be extended by more than 90 days
beyond the maximum 180-day
definitization schedule negotiated in the
UCA without a written determination by
the Secretary of the military department
concerned, the head of the defense
agency concerned, the commander of
the combatant command concerned, or
the Under Secretary of Defense for
Acquisition and Sustainment, that it is
in the best interests of the military
department, the defense agency, the
combatant command, or the Department
of Defense, respectively, to continue the
action.
• Contracting officers of the
Department of Defense may not enter
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17:13 Feb 14, 2019
Jkt 247001
into a UCA for a foreign military sale
unless the contract action provides for
definitization within 180 days and the
contracting officer obtains approval
from the head of the contracting
activity. The head of the agency may
waive this requirement if necessary to
support a contingency or humanitarian
or peacekeeping operation.
• Contracting officers may not
unilaterally definitize a UCA with a
value greater than $50 million until—
Æ The end of the 180-day period
beginning on the date on which the
contractor submits a qualifying proposal
to definitize the contractual terms,
specifications, and price; or the date on
which the amount of funds expended
under the contractual action is equal to
more than 50 percent of the negotiated
overall not-to-exceed price for the
contractual action;
Æ The service acquisition executive
for the military department that
awarded the contract or the Under
Secretary of Defense for Acquisition and
Sustainment if the contract was
awarded by a defense agency or other
component of the Department of
Defense, approves the definitization in
writing;
Æ The contracting officer provides a
copy of the written approval to the
contractor; and
Æ A period of 30 calendar days has
elapsed after the written approval is
provided to the contractor.
• The definition of ‘‘qualifying
proposal’’ is being amended to align
with the statutory definition at 10 U.S.C.
2306, which is a proposal that contains
sufficient information to enable DoD to
conduct a ‘‘meaningful audit’’ instead of
a ‘‘complete and meaningful audit.’’
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and Contracts for
Commercial Items, Including
Commercially Available Off-the-Shelf
Items
This rule does not propose to create
any new provisions or clauses or impact
any existing provisions or clauses.
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
PO 00000
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Fmt 4702
Sfmt 4702
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
V. Executive Orders 13771
This rule is not expected to be an E.O.
13771 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 5 U.S.C. 601,
et seq. However, an initial regulatory
flexibility analysis has been performed
and is summarized as follows:
DoD is proposing to amend the
Defense Federal Acquisition Regulation
Supplement (DFARS) to modify
requirements on undefinitized
contractual actions (UCAs) regarding
calculations of risk-based profit
objectives, timing for definitizations,
foreign military sales, and limitations on
unilateral definitizations of UCAs over
$50 million, in accordance with recently
enacted statutory requirements.
The objective is to implement section
811 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2017 (Pub. L. 114–328) and
section 815 of the NDAA for FY 2018
(Pub. L. 115–91).
With regard to potential profit
impacts, DoD estimates that this rule
will impact approximately 470 contracts
per year, primarily awarded to other
than small entities, where definitization
is extended beyond 180 days after
receipt of a qualifying proposal.
The proposed rule does not include
additional reporting or record keeping
requirements.
The rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known significant
alternative approaches to the rule that
would meet the requirements.
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 2018–D008), in
correspondence.
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Federal Register / Vol. 84, No. 32 / Friday, February 15, 2019 / Proposed Rules
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 215 and
217
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 215 and 217
are proposed to be amended as follows:
1. The authority citation for 48 CFR
parts 215 and 217 continues to read as
follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 215—CONTRACTING BY
NEGOTIATION
2. In section 215.404–71–3, revise
paragraph (d)(2)(i) to read as follows:
■
215.404–71–3 Contract type risk and
working capital adjustment.
khammond on DSKBBV9HB2PROD with PROPOSALS
*
*
*
*
*
(d) * * *
(2) * * *
(i) The contracting officer shall assess
the extent to which costs have been
incurred prior to definitization of the
contract action (also see 217.7404–6(a)
and 243.204–70–6). When costs have
been incurred prior to definitization,
generally regard the contract type risk to
be in the low end of the designated
range. If a substantial portion of the
costs have been incurred prior to
definitization, the contracting officer
may assign a value as low as 0 percent,
regardless of contract type. However, if
a contractor submits a qualifying
proposal to definitize an undefinitized
contract action and the contracting
officer for such action definitizes the
contract after the end of the 180-day
period beginning on the date on which
the contractor submitted the qualifying
proposal (as defined in 217.7401(c)), the
profit allowed on the contract shall
accurately reflect the cost risk of the
contractor as such risk existed on the
date the contractor submitted the
qualifying proposal.
*
*
*
*
*
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Jkt 247001
PART 217—SPECIAL CONTRACTING
METHODS
217.7401
[Amended]
3. In section 217.7401, amend
paragraph (c) introductory text by
removing ‘‘complete and’’.
■
217.7402
[Amended]
4. Amend section 217.7402 by—
a. Removing paragraph (a)(1);
b. Redesignating paragraphs (a)(2)
through (4) as paragraphs (a)(1) through
(3); and
■ c. In the newly redesignated
paragraphs (a)(1) and (2), remove the
semicolons and replace them with
periods.
■ 5. Revise section 217.7404 to read as
follows:
■
■
■
217.7404
Limitations.
See PGI 217.7404 for additional
guidance on obtaining approval to
authorize use of an undefinitized
contact action, documentation
requirements, and other limitations on
their use.
(a) Foreign military sales contracts. (1)
A contracting officer may not enter into
a UCA for a foreign military sale
unless—
(i) The contract action provides for
agreement upon contractual terms,
specifications, and price by the end of
the 180-day period beginning on the
date on which the contractor submits a
qualifying proposal; and
(ii) The contracting officer obtains
approval from the head of the
contracting activity to enter into a UCA
in accordance with 217.7404–1.
(2) The head of an agency may waive
the requirements of paragraph (a)(1) of
this section, if a waiver is necessary in
order to support any of the following
operations:
(i) A contingency operation.
(ii) A humanitarian or peacekeeping
operation.
(b) Unilateral definitization by a
contracting officer. Any UCA with a
value greater than $50 million may not
be unilaterally definitized until—
(1) The earlier of—
(i) The end of the 180-day period,
beginning on the date on which the
contractor submits a qualifying proposal
to definitize the contractual terms,
specifications, and price; or
(ii) The date on which the amount of
funds expended under the contractual
action is equal to more than 50 percent
of the negotiated overall not-to-exceed
price for the contractual action;
(2) The service acquisition executive
for the military department that
PO 00000
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Fmt 4702
Sfmt 9990
4431
awarded the contract or the Under
Secretary of Defense for Acquisition and
Sustainment if the contract was
awarded by a defense agency or other
component of the Department of
Defense, approves the definitization in
writing;
(3) The contracting officer provides a
copy of the written approval to the
contractor; and
(4) A period of 30 calendar days has
elapsed after the written approval is
provided to the contractor.
■ 6. Amend section 217.7404–3 by
revising paragraph (a)(1) to read as
follows:
217.7404–3
Definitization schedule.
(a) * * *
(1) The date that is 180 days after the
contractor submits a qualifying
proposal. This date may not be extended
beyond an additional 90 days without a
written determination by the Secretary
of the military department concerned,
the head of the defense agency
concerned, the commander of the
combatant command concerned, or the
Under Secretary of Defense for
Acquisition and Sustainment that it is
in the best interests of the military
department, the defense agency, the
combatant command, or the Department
of Defense, respectively, to continue the
action; or
*
*
*
*
*
217.7404–5
[Amended]
7. Amend section 217.7404–5, in
paragraph (b) introductory text, by
removing ‘‘217.7404–2’’ and adding
‘‘217.7404(a), 217.7404–2’’ in its place.
■ 8. Amend section 217.7404–6 by
revising paragraph (a) to read as follows:
■
217.7404–6
Allowable profit.
*
*
*
*
*
(a) Any reduced cost risk to the
contractor for costs incurred during
contract performance before negotiation
of the final price. However, if a
contractor submits a qualifying proposal
to definitize a UCA and the contracting
officer for such action definitizes the
contract after the end of the 180-day
period beginning on the date on which
the contractor submitted the qualifying
proposal, the profit allowed on the
contract shall accurately reflect the cost
risk of the contractor as such risk
existed on the date the contractor
submitted the qualifying proposal;
*
*
*
*
*
[FR Doc. 2019–02530 Filed 2–14–19; 8:45 am]
BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Proposed Rules]
[Pages 4429-4431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02530]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 215 and 217
[Docket DARS-2019-0004]
RIN 0750-AJ72
Defense Federal Acquisition Regulation Supplement: Undefinitized
Contract Actions (DFARS Case 2018-D008)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement a section of the National
Defense Authorization Act for Fiscal Year 2017 and a section of the
National Defense Authorization Act for Fiscal Year 2018 to revise
requirements for definitizing undefinitized contract actions.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before April 16, 2019, to be considered
in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2018-D008, using
any of the following methods:
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Search for ``DFARS Case 2018-D008.'' Select ``Comment Now'' and follow
the instructions provided to submit a comment. Please include ``DFARS
Case 2018-D008'' on any attached documents.
[[Page 4430]]
[cir] Email: osd.dfars@mail.mil. Include DFARS Case 2018-D008 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD(A&S)DPC/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. Amy Williams, telephone 571-372-
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to revise the DFARS to implement section 811 of
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017
(Pub. L. 114-328) and section 815 of the NDAA for FY 2018 (Pub. L. 115-
91). Section 811 modifies restrictions on undefinitized contractual
actions (UCA) regarding risk based profit, time for definitization, and
foreign military sales. Section 815 establishes limitations on
unilateral definitizations of UCAs over $50 million.
II. Discussion and Analysis
This rule proposes to make the following amendments to DFARS:
If a UCA is definitized after the end of the 180-day
period beginning on the date the contractor submits a qualifying
proposal, the head of the agency shall ensure profit reflects the cost
risk of the contractor as such risk existed on the date the contractor
submitted the qualifying proposal.
The definitization of a UCA may not be extended by more
than 90 days beyond the maximum 180-day definitization schedule
negotiated in the UCA without a written determination by the Secretary
of the military department concerned, the head of the defense agency
concerned, the commander of the combatant command concerned, or the
Under Secretary of Defense for Acquisition and Sustainment, that it is
in the best interests of the military department, the defense agency,
the combatant command, or the Department of Defense, respectively, to
continue the action.
Contracting officers of the Department of Defense may not
enter into a UCA for a foreign military sale unless the contract action
provides for definitization within 180 days and the contracting officer
obtains approval from the head of the contracting activity. The head of
the agency may waive this requirement if necessary to support a
contingency or humanitarian or peacekeeping operation.
Contracting officers may not unilaterally definitize a UCA
with a value greater than $50 million until--
[cir] The end of the 180-day period beginning on the date on which
the contractor submits a qualifying proposal to definitize the
contractual terms, specifications, and price; or the date on which the
amount of funds expended under the contractual action is equal to more
than 50 percent of the negotiated overall not-to-exceed price for the
contractual action;
[cir] The service acquisition executive for the military department
that awarded the contract or the Under Secretary of Defense for
Acquisition and Sustainment if the contract was awarded by a defense
agency or other component of the Department of Defense, approves the
definitization in writing;
[cir] The contracting officer provides a copy of the written
approval to the contractor; and
[cir] A period of 30 calendar days has elapsed after the written
approval is provided to the contractor.
The definition of ``qualifying proposal'' is being amended
to align with the statutory definition at 10 U.S.C. 2306, which is a
proposal that contains sufficient information to enable DoD to conduct
a ``meaningful audit'' instead of a ``complete and meaningful audit.''
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and Contracts for Commercial Items, Including Commercially
Available Off-the-Shelf Items
This rule does not propose to create any new provisions or clauses
or impact any existing provisions or clauses.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
V. Executive Orders 13771
This rule is not expected to be an E.O. 13771 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 5 U.S.C. 601, et seq.
However, an initial regulatory flexibility analysis has been performed
and is summarized as follows:
DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to modify requirements on undefinitized
contractual actions (UCAs) regarding calculations of risk-based profit
objectives, timing for definitizations, foreign military sales, and
limitations on unilateral definitizations of UCAs over $50 million, in
accordance with recently enacted statutory requirements.
The objective is to implement section 811 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328)
and section 815 of the NDAA for FY 2018 (Pub. L. 115-91).
With regard to potential profit impacts, DoD estimates that this
rule will impact approximately 470 contracts per year, primarily
awarded to other than small entities, where definitization is extended
beyond 180 days after receipt of a qualifying proposal.
The proposed rule does not include additional reporting or record
keeping requirements.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no known significant alternative approaches to
the rule that would meet the requirements.
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 2018-D008), in
correspondence.
[[Page 4431]]
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 215 and 217
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 215 and 217 are proposed to be amended as
follows:
0
1. The authority citation for 48 CFR parts 215 and 217 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 215--CONTRACTING BY NEGOTIATION
0
2. In section 215.404-71-3, revise paragraph (d)(2)(i) to read as
follows:
215.404-71-3 Contract type risk and working capital adjustment.
* * * * *
(d) * * *
(2) * * *
(i) The contracting officer shall assess the extent to which costs
have been incurred prior to definitization of the contract action (also
see 217.7404-6(a) and 243.204-70-6). When costs have been incurred
prior to definitization, generally regard the contract type risk to be
in the low end of the designated range. If a substantial portion of the
costs have been incurred prior to definitization, the contracting
officer may assign a value as low as 0 percent, regardless of contract
type. However, if a contractor submits a qualifying proposal to
definitize an undefinitized contract action and the contracting officer
for such action definitizes the contract after the end of the 180-day
period beginning on the date on which the contractor submitted the
qualifying proposal (as defined in 217.7401(c)), the profit allowed on
the contract shall accurately reflect the cost risk of the contractor
as such risk existed on the date the contractor submitted the
qualifying proposal.
* * * * *
PART 217--SPECIAL CONTRACTING METHODS
217.7401 [Amended]
0
3. In section 217.7401, amend paragraph (c) introductory text by
removing ``complete and''.
217.7402 [Amended]
0
4. Amend section 217.7402 by--
0
a. Removing paragraph (a)(1);
0
b. Redesignating paragraphs (a)(2) through (4) as paragraphs (a)(1)
through (3); and
0
c. In the newly redesignated paragraphs (a)(1) and (2), remove the
semicolons and replace them with periods.
0
5. Revise section 217.7404 to read as follows:
217.7404 Limitations.
See PGI 217.7404 for additional guidance on obtaining approval to
authorize use of an undefinitized contact action, documentation
requirements, and other limitations on their use.
(a) Foreign military sales contracts. (1) A contracting officer may
not enter into a UCA for a foreign military sale unless--
(i) The contract action provides for agreement upon contractual
terms, specifications, and price by the end of the 180-day period
beginning on the date on which the contractor submits a qualifying
proposal; and
(ii) The contracting officer obtains approval from the head of the
contracting activity to enter into a UCA in accordance with 217.7404-1.
(2) The head of an agency may waive the requirements of paragraph
(a)(1) of this section, if a waiver is necessary in order to support
any of the following operations:
(i) A contingency operation.
(ii) A humanitarian or peacekeeping operation.
(b) Unilateral definitization by a contracting officer. Any UCA
with a value greater than $50 million may not be unilaterally
definitized until--
(1) The earlier of--
(i) The end of the 180-day period, beginning on the date on which
the contractor submits a qualifying proposal to definitize the
contractual terms, specifications, and price; or
(ii) The date on which the amount of funds expended under the
contractual action is equal to more than 50 percent of the negotiated
overall not-to-exceed price for the contractual action;
(2) The service acquisition executive for the military department
that awarded the contract or the Under Secretary of Defense for
Acquisition and Sustainment if the contract was awarded by a defense
agency or other component of the Department of Defense, approves the
definitization in writing;
(3) The contracting officer provides a copy of the written approval
to the contractor; and
(4) A period of 30 calendar days has elapsed after the written
approval is provided to the contractor.
0
6. Amend section 217.7404-3 by revising paragraph (a)(1) to read as
follows:
217.7404-3 Definitization schedule.
(a) * * *
(1) The date that is 180 days after the contractor submits a
qualifying proposal. This date may not be extended beyond an additional
90 days without a written determination by the Secretary of the
military department concerned, the head of the defense agency
concerned, the commander of the combatant command concerned, or the
Under Secretary of Defense for Acquisition and Sustainment that it is
in the best interests of the military department, the defense agency,
the combatant command, or the Department of Defense, respectively, to
continue the action; or
* * * * *
217.7404-5 [Amended]
0
7. Amend section 217.7404-5, in paragraph (b) introductory text, by
removing ``217.7404-2'' and adding ``217.7404(a), 217.7404-2'' in its
place.
0
8. Amend section 217.7404-6 by revising paragraph (a) to read as
follows:
217.7404-6 Allowable profit.
* * * * *
(a) Any reduced cost risk to the contractor for costs incurred
during contract performance before negotiation of the final price.
However, if a contractor submits a qualifying proposal to definitize a
UCA and the contracting officer for such action definitizes the
contract after the end of the 180-day period beginning on the date on
which the contractor submitted the qualifying proposal, the profit
allowed on the contract shall accurately reflect the cost risk of the
contractor as such risk existed on the date the contractor submitted
the qualifying proposal;
* * * * *
[FR Doc. 2019-02530 Filed 2-14-19; 8:45 am]
BILLING CODE 5001-06-P
