Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause “Orders for Facilities and Services” (DFARS Case 2018-D045), 18228-18230 [2019-08484]
Download as PDF
<![CDATA[
amozie on DSK9F9SC42PROD with PROPOSALS
18228
Federal Register / Vol. 84, No. 83 / Tuesday, April 30, 2019 / Proposed Rules
relocating the facilities or equipment in lieu
of paying any termination or cancellation
charge under this clause. The basic
cancellation liability or basic termination
liability applicable to the facilities or
equipment in their former location shall
continue to apply to the facilities and
equipment in their new location. Monthly
recurring charges shall continue to be paid
during the period.
(e) When there is another requirement or
foreseeable reuse in place of cancelled or
terminated facilities or equipment, no charge
shall apply and the basic cancellation
liability or basic termination liability shall be
appropriately reduced. When feasible, the
Contractor shall promptly reuse discontinued
channels or facilities, including equipment
for which the Government is obligated to pay
a minimum service charge.
(f) The amount of the Government’s
liability upon cancellation or termination of
any of the services ordered under this
agreement/contract will be determined under
applicable tariffs governing cancellation and
termination charges that—
(1) Are filed by the Contractor with a
governmental regulatory body, as defined in
the Orders For Facilities and Services clause
of this agreement/contract;
(2) Are in effect on the date of termination;
and
(3) Provide specific cancellation or
termination charges for the facilities and
equipment involved or show how to
determine the charges.
(g) The amount of the Government’s
liability upon cancellation or termination of
any of the services ordered under this
agreement/contract that are not subject to a
governmental regulatory body will be
determined under a mutually agreed
schedule in the communication services
authorization (CSA) or other contractual
document.
(h) If no applicable tariffs are in effect on
the date of cancellation or termination or set
forth in the applicable CSA or other
contractual document, the Government’s
liability will be determined under the
following settlement procedures—
(1) The Contractor agrees to provide the
Contracting Officer, in such reasonable detail
as the Contracting Officer may require,
inventory schedules covering all items of
property or facilities in the Contractor’s
possession, the cost of which is included in
the Basic Cancellation or Termination
Liability for which the Contractor has no
foreseeable reuse.
(2) The Contractor shall use its best efforts
to sell property or facilities when the
Contractor has no foreseeable reuse or when
the Government has not exercised its option
to take title under the Title to
Telecommunications Facilities and
Equipment clause of this agreement/contract.
The Contractor shall apply any proceeds of
the sale to reduce any payments by the
Government to the Contractor under a
cancellation or termination settlement.
(3) The Contractor shall record actual
nonrecoverable costs under established
accounting procedures prescribed by the
cognizant governmental regulatory authority
or, if no such procedures have been
VerDate Sep<11>2014
17:27 Apr 29, 2019
Jkt 247001
prescribed, under generally accepted
accounting procedures applicable to the
provision of telecommunication services for
public use.
(4) The net salvage value shall be deducted
from the Contractor’s installed cost. In
determining net salvage value the Contractor
shall consider the foreseeable reuse of the
facilities and equipment by the Contractor.
The Contractor shall make allowance for the
cost of dismantling, removal, reconditioning,
and disposal of the facilities and equipment
when necessary either for the sale of facilities
or their reuse by the Contractor in another
location.
(5) Upon termination of services, the
Government will reimburse the Contractor
for the nonrecoverable cost less such costs
amortized to the date services are terminatedand establish the liability period as mutually
agreed to but not to exceed ten years. In the
case of either a cancellation or a termination,
the Government’s presumed maximum
liability will be capped by the unpaid
nonrecurring charges and the monthly
recurring charges (MRCs) set out in the
contract/agreement. The presumed maximum
liability for MRCs will be capped at MRCs for
the minimum service period and any
required notice period.
(6) When the basic cancellation liability or
basic termination liability established by the
CSA or other contractual document is based
on estimated costs, the Contractor agrees to
settle on the basis of actual cost at the time
of cancellation or termination.
(7) The Contractor agrees that, if after
settlement but within the termination
liability period of the services, should the
Contractor make reuse of equipment or
facilities which were treated as nonreusable
or nonsalvable in the settlement, the
Contractor shall reimburse the Government
for the value of the equipment or facilities.
(8) The Contractor agrees to exclude—
(i) Any costs that are not included in
determining cancellation and termination
charges under the Contractor’s standard
practices or procedures; and
(ii) Charges not ordinarily made by the
Contractor for similar facilities or equipment,
furnished under similar circumstances.
(i) The Government may, under such terms
and conditions as it may prescribe, make
partial payments and payments on account
against costs incurred by the Contractor in
connection with the cancelled or terminated
portion of this agreement/contract. The
Government may make these payments if the
Contracting Officer determines that the total
of the payments is within the amount the
Contractor is entitled. If the total of the
payments is in excess of the amount finally
agreed or determined to be due under this
clause, the Contractor shall pay the excess to
the Government upon demand.
(j) Failure to agree shall be a dispute
concerning a question of fact within the
meaning of the Disputes clause.
(End of clause)
PO 00000
Frm 00065
Fmt 4702
Sfmt 4702
252.239–7008
[Removed and Reserved]
4. Remove and reserve section
252.239–7008.
■
[FR Doc. 2019–08483 Filed 4–29–19; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 239 and 252
[Docket DARS–2019–0017]
RIN 0750–AK10
Defense Federal Acquisition
Regulation Supplement: Modification
of DFARS Clause ‘‘Orders for Facilities
and Services’’ (DFARS Case 2018–
D045)
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
modify the text of an existing DFARS
clause to include the text of another
DFARS clause on the same subject in an
effort to streamline contract terms and
conditions for contractors, pursuant to
action taken by the DoD Regulatory
Reform Task Force.
DATES: Comments on the proposed rule
should be submitted in writing to the
address shown below on or before July
1, 2019, to be considered in the
formation of a final rule.
ADDRESSES: Submit comments
identified by DFARS Case 2018–D045,
using any of the following methods:
Æ Regulations.gov: https://
www.regulations.gov. Search for
‘‘DFARS Case 2018–D045.’’ Select
‘‘Comment Now’’’’ and follow the
instructions provided to submit a
comment. Please include ‘‘DFARS Case
2018–D045’’ on any attached
documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D045 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Carrie Moore,
OUSD(AT&L)DPAP/DARS, Room
3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
SUMMARY:
E:\FR\FM\30APP1.SGM
30APP1
Federal Register / Vol. 84, No. 83 / Tuesday, April 30, 2019 / Proposed Rules
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.
Carrie Moore, telephone 571–372–6093.
SUPPLEMENTARY INFORMATION:
I. Background
This rule proposes to modify the
DFARS clause 252.239–7004, Orders for
Facilities and Services, to incorporate
the information currently included in
DFARS clause 252.239–7005, Rates,
Charges, and Services, and make minor
changes to simplify the clause text.
Combining these clauses will result in
252.239–7005 being removed from the
DFARS.
amozie on DSK9F9SC42PROD with PROPOSALS
II. Discussion and Analysis
The clauses at DFARS 252.239–7004
and 252.239–7005 are both included in
all solicitations, contracts, and basic
agreements for telecommunications
services. The clause at 252.239–7004
specifies how contractors shall
acknowledge the receipt orders under
the contract or agreement, while the
clause at 252.239–7005 provides
contractors with terms and conditions
regarding charges for facilities and
services being provided in accordance
with the contract or agreement. Since
both clauses are included in all of the
same contracts as DFARS clause
252.239–7004 and both clauses provide
terms and conditions pertaining to
telecommunications services, the text of
the two clauses can be combined,
without changing the intent of either
one of the clauses. This will help
minimize the number of clauses in the
contract and streamline contract terms
and conditions for contractors.
The modification of this DFARS text
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
these clauses. Subsequently, the DoD
Task Force reviewed the requirements
VerDate Sep<11>2014
17:27 Apr 29, 2019
Jkt 247001
of DFARS clause 252.239–7004 and
252.239–7005 and determined that the
clauses could be combined.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available OffThe-Shelf Items
This proposed rule does not create
any new provisions or clauses. The rule
combines two clauses on the same topic
into a single clause and makes minor
modifications to simplify clause text.
This rule does not change the
applicability of the affected clauses,
which are included in solicitations and
contracts for telecommunications
services, including those valued at or
below the SAT or for commercial
services.
IV. Executive Orders 12866 and 13563
Executive Order (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 subject to Executive
Order (E.O.) 13771, because this rule is
not a significant regulatory action 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., because the rule is not creating
any new requirements or changing any
existing requirements for contractors.
However, an initial regulatory flexibility
analysis has been performed and is
summarized as follows:
The Department of Defense is
proposing to amend the Defense Federal
Acquisition Regulation Supplement
PO 00000
Frm 00066
Fmt 4702
Sfmt 4702
18229
(DFARS) to modify the text of DFARS
clause 252.239–7004, Orders for
Facilities and Services, to include the
text of DFARS clause 252.239–7005,
Rates, Charges, and Services. Combining
the requirements of these two clauses
permits DFARS 252.239–7005 to be
removed from the DFARS.
The objective of this proposed rule is
to streamline contract terms and
conditions pertaining to
telecommunications services. The
modification of these DFARS clauses
supports a recommendation from the
DoD Regulatory Reform Task Force.
This rule is not expected 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.,
because it is simply combining two
existing clauses that address the same
topic into a single comprehensive
clause.
Based on fiscal year (FY) 2018 data
from the Federal Procurement Data
System, the Government awarded
approximately 8,670 contracts and
orders for services under the Product
and Supply Code (PSC) D3—
Information Technology and
Telecommunications. Of the 8,670
contracts and orders awarded,
approximately 28% of the awards were
made to 1,050 unique small businesses
entities. The PSC D3 does not break
down further into information
technology services and
telecommunications services; therefore,
the number of contracts and orders
awarded in FY 2018 exclusively for
telecommunications services is
estimated to be fewer than the number
awarded in FY 2018 under PSC D3 in
its entirety.
This proposed rule does not include
any new reporting, recordkeeping, or
other compliance requirements for small
businesses. This rule does not duplicate,
overlap, or conflict with any other
Federal rules. There are no known
significant alternative approaches to the
proposed rule that would meet the
proposed objectives.
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–D035) in
correspondence.
E:\FR\FM\30APP1.SGM
30APP1
18230
Federal Register / Vol. 84, No. 83 / Tuesday, April 30, 2019 / Proposed Rules
VI. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 239 and
252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR part 239 and 252
are proposed to be amended as follows:
■ 1. The authority citation for parts 239
and 252 continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 239—ACQUISITION OF
INFORMATION TECHNOLOGY
2. Amend section 239.7411 by—
a. In paragraph (a) introductory text,
removing the em dash and replacing it
with a period;
■ b. In paragraphs (a)(1) and (2),
removing the semicolons and adding
periods in their places;
■ c. Removing paragraph (a)(3);
■ d. Redesignating paragraphs (a)(4)
through (6) as paragraphs (a)(3) through
(5), respectively; and
■ e. In redesignated paragraphs (a)(3)
and (4), removing the semicolons and
adding periods in their places.
■
■
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
3. Revise section 252.239–7004 to
read as follows:
■
252.239–7004
Services.
Orders for Facilities and
amozie on DSK9F9SC42PROD with PROPOSALS
As prescribed in 239.7411(a), use the
following clause:
Orders for Facilities and Services (Date)
(a) Definitions: As used in this clause—
Governmental regulatory body means the
Federal Communications Commission, any
statewide regulatory body, or any body with
less than statewide jurisdiction when
operating under the state authority.
Regulatory bodies whose decisions are not
subject to judicial appeal, and regulatory
bodies that regulate a company owned by the
same entity that creates the regulatory body
are not governmental regulatory bodies.
(b) The Contractor shall acknowledge a
communication service authorization or
other type order for supplies and facilities
by—
(1) Commencing performance after receipt
of an order; or
(2) Written acceptance by a duly
authorized representative.
VerDate Sep<11>2014
17:27 Apr 29, 2019
Jkt 247001
(c) The Contractor shall furnish the
services and facilities under this agreement/
contract in accordance with all applicable
tariffs, rates, charges, regulations,
requirements, terms, and conditions of—
(1) Service and facilities furnished or
offered by the Contractor to the general
public or the Contractor’s subscribers; or
(2) Service as lawfully established by a
governmental regulatory body.
(d) The Government will not prepay for
services.
(e) For nontariffed services, the Contractor
shall charge the Government at the lowest
rate and under the most favorable terms and
conditions for similar service and facilities
offered to any other customer.
(f) Recurring charges for services and
facilities shall, in each case, start with the
satisfactory beginning of service or provision
of facilities or equipment and are payable
monthly in arrears.
(g) Expediting charges are costs necessary
to get services earlier than normal. Examples
are overtime pay or special shipment. When
authorized, expediting charges shall be the
additional costs incurred by the Contractor
and the subcontractor. The Government shall
pay expediting charges only when—
(1) They are provided for in the tariff
established by a governmental regulatory
body; or
(2) They are authorized in a
communication service authorization or
other contractual document.
(h) When services normally provided are
technically unacceptable and the
development, fabrication, or manufacture of
special equipment is required, the
Government may—
(1) Provide the equipment; or
(2) Direct the Contractor to acquire the
equipment or facilities. If the Contractor
acquires the equipment or facilities, the
acquisition shall be competitive, if
practicable.
(i) If at any time the Government defers or
changes its orders for any of the services but
does not cancel or terminate them, the
amount paid or payable to the Contractor for
the services deferred or modified shall be
equitably adjusted under applicable tariffs
filed by the Contractor with the regulatory
commission in effect at the time of deferral
or change. If no tariffs are in effect, the
Government and the Contractor shall
equitably adjust the rates by mutual
agreement. Failure to agree on any
adjustment shall be a dispute concerning a
question of fact within the meaning of the
Disputes clause of this contract.
252.239–7005
[Removed and Reserved]
4. Remove and reserve section
252.239–7005.
■
[FR Doc. 2019–08484 Filed 4–29–19; 8:45 am]
BILLING CODE 5001–01–P
PO 00000
Frm 00067
Fmt 4702
Sfmt 4702
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Chapter I
[Docket No. FWS–HQ–LE–2018–0078;
FF09L00200–FX–LE18110900000]
Bald and Golden Eagle Protection Act
and Migratory Bird Treaty Act;
Religious Use of Feathers
Fish and Wildlife Service,
Interior.
ACTION: Petition for rulemaking; request
for public comment.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), have received
a petition for rulemaking, which asks
the Service to revise the existing rules
pertaining to the religious use of
federally protected bird feathers. The
petition is being published pursuant to
the terms of a settlement agreement
entered into in 2016 by the United
States with McAllen Grace Brethren
Church and the Becket Fund for
Religious Liberty. Any changes to
existing rules will be subject to a public
comment period, and tribal consultation
consistent with Executive Order 13175
and the Department of the Interior
Policy on Consultation with Indian
Tribes. The Service seeks comments on
the petition.
DATES: Comments must be submitted on
or before July 1, 2019.
ADDRESSES: Document availability: The
petition and other materials mentioned
in this document are available on the
internet at https://www.regulations.gov
in Docket No. FWS–HQ–LE–2018–0078.
To review these materials in person,
contact the person listed under FOR
FURTHER INFORMATION CONTACT.
Comment submission: You may
submit comments by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments to
Docket No. FWS–HQ–LE–2018–0078.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–HQ–
LE–2018–0078; Division of Policy,
Performance, and Management
Programs; U.S. Fish and Wildlife
Service; 5275 Leesburg Pike, MS: BPHC,
Falls Church, VA 22041–3803.
See Public Comments below for
additional information.
FOR FURTHER INFORMATION CONTACT:
Edward Grace, Assistant Director, U.S.
Fish and Wildlife Service, Office of Law
Enforcement, edward_grace@fws.gov,
(703) 358–1949.
SUPPLEMENTARY INFORMATION:
SUMMARY:
E:\FR\FM\30APP1.SGM
30APP1
]]>Agencies
[Federal Register Volume 84, Number 83 (Tuesday, April 30, 2019)]
[Proposed Rules]
[Pages 18228-18230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08484]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 239 and 252
[Docket DARS-2019-0017]
RIN 0750-AK10
Defense Federal Acquisition Regulation Supplement: Modification
of DFARS Clause ``Orders for Facilities and Services'' (DFARS Case
2018-D045)
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 modify the text of an existing DFARS
clause to include the text of another DFARS clause on the same subject
in an effort to streamline contract terms and conditions for
contractors, pursuant to action taken by the DoD Regulatory Reform Task
Force.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before July 1, 2019, to be considered in
the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2018-D045, using
any of the following methods:
[cir] Regulations.gov: https://www.regulations.gov. Search for
``DFARS Case 2018-D045.'' Select ``Comment Now'''' and follow the
instructions provided to submit a comment. Please include ``DFARS Case
2018-D045'' on any attached documents.
[cir] Email: [email protected]. Include DFARS Case 2018-D045 in
the subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Carrie
Moore, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
[[Page 18229]]
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. Carrie Moore, telephone 571-372-
6093.
SUPPLEMENTARY INFORMATION:
I. Background
This rule proposes to modify the DFARS clause 252.239-7004, Orders
for Facilities and Services, to incorporate the information currently
included in DFARS clause 252.239-7005, Rates, Charges, and Services,
and make minor changes to simplify the clause text. Combining these
clauses will result in 252.239-7005 being removed from the DFARS.
II. Discussion and Analysis
The clauses at DFARS 252.239-7004 and 252.239-7005 are both
included in all solicitations, contracts, and basic agreements for
telecommunications services. The clause at 252.239-7004 specifies how
contractors shall acknowledge the receipt orders under the contract or
agreement, while the clause at 252.239-7005 provides contractors with
terms and conditions regarding charges for facilities and services
being provided in accordance with the contract or agreement. Since both
clauses are included in all of the same contracts as DFARS clause
252.239-7004 and both clauses provide terms and conditions pertaining
to telecommunications services, the text of the two clauses can be
combined, without changing the intent of either one of the clauses.
This will help minimize the number of clauses in the contract and
streamline contract terms and conditions for contractors.
The modification of this DFARS text 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 these clauses. Subsequently, the DoD Task Force
reviewed the requirements of DFARS clause 252.239-7004 and 252.239-7005
and determined that the clauses could be combined.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-The-Shelf Items
This proposed rule does not create any new provisions or clauses.
The rule combines two clauses on the same topic into a single clause
and makes minor modifications to simplify clause text. This rule does
not change the applicability of the affected clauses, which are
included in solicitations and contracts for telecommunications
services, including those valued at or below the SAT or for commercial
services.
IV. Executive Orders 12866 and 13563
Executive Order (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 subject to Executive Order (E.O.) 13771, because
this rule is not a significant regulatory action 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.,
because the rule is not creating any new requirements or changing any
existing requirements for contractors. However, an initial regulatory
flexibility analysis has been performed and is summarized as follows:
The Department of Defense is proposing to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to modify the text of DFARS
clause 252.239-7004, Orders for Facilities and Services, to include the
text of DFARS clause 252.239-7005, Rates, Charges, and Services.
Combining the requirements of these two clauses permits DFARS 252.239-
7005 to be removed from the DFARS.
The objective of this proposed rule is to streamline contract terms
and conditions pertaining to telecommunications services. The
modification of these DFARS clauses supports a recommendation from the
DoD Regulatory Reform Task Force.
This rule is not expected 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., because it is simply
combining two existing clauses that address the same topic into a
single comprehensive clause.
Based on fiscal year (FY) 2018 data from the Federal Procurement
Data System, the Government awarded approximately 8,670 contracts and
orders for services under the Product and Supply Code (PSC) D3--
Information Technology and Telecommunications. Of the 8,670 contracts
and orders awarded, approximately 28% of the awards were made to 1,050
unique small businesses entities. The PSC D3 does not break down
further into information technology services and telecommunications
services; therefore, the number of contracts and orders awarded in FY
2018 exclusively for telecommunications services is estimated to be
fewer than the number awarded in FY 2018 under PSC D3 in its entirety.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small businesses.
This rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no known significant alternative approaches to
the proposed rule that would meet the proposed objectives.
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-D035)
in correspondence.
[[Page 18230]]
VI. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 239 and 252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR part 239 and 252 are proposed to be amended as
follows:
0
1. The authority citation for parts 239 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 239--ACQUISITION OF INFORMATION TECHNOLOGY
0
2. Amend section 239.7411 by--
0
a. In paragraph (a) introductory text, removing the em dash and
replacing it with a period;
0
b. In paragraphs (a)(1) and (2), removing the semicolons and adding
periods in their places;
0
c. Removing paragraph (a)(3);
0
d. Redesignating paragraphs (a)(4) through (6) as paragraphs (a)(3)
through (5), respectively; and
0
e. In redesignated paragraphs (a)(3) and (4), removing the semicolons
and adding periods in their places.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Revise section 252.239-7004 to read as follows:
252.239-7004 Orders for Facilities and Services.
As prescribed in 239.7411(a), use the following clause:
Orders for Facilities and Services (Date)
(a) Definitions: As used in this clause--
Governmental regulatory body means the Federal Communications
Commission, any statewide regulatory body, or any body with less
than statewide jurisdiction when operating under the state
authority. Regulatory bodies whose decisions are not subject to
judicial appeal, and regulatory bodies that regulate a company owned
by the same entity that creates the regulatory body are not
governmental regulatory bodies.
(b) The Contractor shall acknowledge a communication service
authorization or other type order for supplies and facilities by--
(1) Commencing performance after receipt of an order; or
(2) Written acceptance by a duly authorized representative.
(c) The Contractor shall furnish the services and facilities
under this agreement/contract in accordance with all applicable
tariffs, rates, charges, regulations, requirements, terms, and
conditions of--
(1) Service and facilities furnished or offered by the
Contractor to the general public or the Contractor's subscribers; or
(2) Service as lawfully established by a governmental regulatory
body.
(d) The Government will not prepay for services.
(e) For nontariffed services, the Contractor shall charge the
Government at the lowest rate and under the most favorable terms and
conditions for similar service and facilities offered to any other
customer.
(f) Recurring charges for services and facilities shall, in each
case, start with the satisfactory beginning of service or provision
of facilities or equipment and are payable monthly in arrears.
(g) Expediting charges are costs necessary to get services
earlier than normal. Examples are overtime pay or special shipment.
When authorized, expediting charges shall be the additional costs
incurred by the Contractor and the subcontractor. The Government
shall pay expediting charges only when--
(1) They are provided for in the tariff established by a
governmental regulatory body; or
(2) They are authorized in a communication service authorization
or other contractual document.
(h) When services normally provided are technically unacceptable
and the development, fabrication, or manufacture of special
equipment is required, the Government may--
(1) Provide the equipment; or
(2) Direct the Contractor to acquire the equipment or
facilities. If the Contractor acquires the equipment or facilities,
the acquisition shall be competitive, if practicable.
(i) If at any time the Government defers or changes its orders
for any of the services but does not cancel or terminate them, the
amount paid or payable to the Contractor for the services deferred
or modified shall be equitably adjusted under applicable tariffs
filed by the Contractor with the regulatory commission in effect at
the time of deferral or change. If no tariffs are in effect, the
Government and the Contractor shall equitably adjust the rates by
mutual agreement. Failure to agree on any adjustment shall be a
dispute concerning a question of fact within the meaning of the
Disputes clause of this contract.
252.239-7005 [Removed and Reserved]
0
4. Remove and reserve section 252.239-7005.
[FR Doc. 2019-08484 Filed 4-29-19; 8:45 am]
BILLING CODE 5001-01-P
