Defense Federal Acquisition Regulation Supplement: Brand Name or Equal (DFARS Case 2017-D040), 25190-25192 [2019-11305]
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Federal Register / Vol. 84, No. 105 / Friday, May 31, 2019 / Rules and Regulations
Æ Is, or is not offering commercial
satellite services using satellites,
launched on or after December 31, 2022,
that will be designed or manufactured
by an entity controlled in whole or in
part by, or acting on behalf of, the
government of a covered foreign
country;
Æ Is, or is not offering commercial
satellite services using satellites,
launched outside the United States on
or after December 31, 2022, using a
launch vehicle that is designed or
manufactured in a covered foreign
country;
Æ Is, or is not offering commercial
satellite services using satellites,
launched outside the United States on
or after December 31, 2022, using a
launch vehicle that is provided by the
government of a covered foreign
country; and
Æ Is, or is not offering commercial
satellite services using satellites,
launched outside the United States on
or after December 31, 2022, using a
launch vehicle that is provided by an
entity controlled in whole or in part by,
or acting on behalf of, the government
of a covered foreign country.
Further information is required if the
offeror provides an affirmative response
to any of the representations, but such
affirmative response and further
submission is expected to be extremely
rare because of the statutory prohibition
and the expected rarity of a waiver by
the Under Secretary of Defense for
Acquisition and Sustainment or for
Policy. Furthermore, this prohibition is
only applicable to launches on or after
December 31, 2022.
If the satellite service provider
responded affirmatively to any of the
new representations regarding launch
vehicles, if such launches are covered in
whole or in part by a contract or other
agreement relating to launch services
that, prior to June 10, 2018, was either
fully paid by the satellite service
provider or covered by a legally binding
commitment of the satellite service
provider to pay for such services, a de
minimis amount of information is
required with regard to such contract or
agreement in order to establish an
exception to the associated prohibitions.
• Section 1296. There are no
projected reporting or recordkeeping
requirements relating to implementation
of section 1296. The only compliance
requirements are to not purchase 600
series items that originate in the
People’s Republic of China.
This rule will not have a significant
economic impact on any small entities,
unless they are offering commercial
satellite services subject to the
restrictions of this rule or providing 600
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series items that originate in the Peoples
Republic of China. DoD was not able to
identify any alternatives that would
reduce the burden on small entities and
meet the objectives of the rule.
in solicitations to be justified and
approved.
DATES: Effective May 31, 2019.
VI. Paperwork Reduction Act
Ms.
Carrie Moore, telephone 571–372–6093.
SUPPLEMENTARY INFORMATION:
The interim rule affected the
information collection requirements in
the provision at DFARS 252.225–7049,
currently approved through March 31,
2021, under OMB Control Number
0704–0525, entitled Prohibition on
Acquisition of Commercial Satellite
Services from Certain Foreign Entities,
in accordance with the Paperwork
Reduction Act (44 U.S.C. chapter 35).
The impact, however, is negligible at
this time, because the prohibition on
use of certain foreign satellites and
launch vehicles only applies to
launches outside the United States on or
after December 31, 2022. The
information collection will be updated
to reflect these changes when renewed.
I. Background
DoD published a proposed rule in the
Federal Register at 83 FR 54696 on
October 31, 2018, to implement section
888(a) of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2017 (Pub. L. 114–328), which
requires that competition on DoD
contracts not be limited through the use
of brand name or equal descriptions, or
proprietary specifications or standards,
in solicitations, unless a justification for
such specification is provided and
approved in accordance with 10 U.S.C.
2304(f). Six respondents submitted
public comments in response to the
proposed rule.
List of Subjects in 48 CFR Parts 201,
212, 225, and 252
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
discussion of the comments and the
changes made to the rule as a result of
those comments is provided, as follows:
Government procurement.
Accordingly, the interim rule
amending 48 CFR parts 201, 212, 225,
and 252, which was published at 83 FR
66066 on December 21, 2018, is adopted
as final without change.
■
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
[FR Doc. 2019–11306 Filed 5–30–19; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 206, 211, and 213
[Docket DARS–2018–0052]
RIN 0750–AJ50
Defense Federal Acquisition
Regulation Supplement: Brand Name
or Equal (DFARS Case 2017–D040)
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 2017 that requires the use of
brand name or equal descriptions, or
proprietary specifications or standards,
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
A. Summary of Significant Changes
From the Proposed Rule
The paragraphs at DFARS 211.104
and DFARS 211.170 have been updated
to clarify that the use brand name or
equal descriptions or proprietary
specifications and standards shall be
justified and approved when using
sealed bidding procedures, negotiated
procedures, or simplified procedures for
certain commercial items.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Several respondents
expressed support for the rule.
Response: DoD acknowledges the
support for the rule.
2. Restrictions on Brand Name or Equal
Descriptions
Comment: A respondent expressed
concern that subjecting brand name or
equal descriptions to the justification
and approval process will discourage
the use of solicitations that signal a
preference for, but do not require, a
specific brand or product.
Response: The language in the rule
meets the intent of the statute at section
888(a) of the NDAA for FY 2017. When
contracting without providing for full
and open competition (e.g., requiring a
specific brand or product particular to
one manufacturer, or requiring
specifications or standards that are
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Federal Register / Vol. 84, No. 105 / Friday, May 31, 2019 / Rules and Regulations
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proprietary to a specific entity),
contracting officers are still required to
justify such an action and have it
approved in accordance with the
processes of Federal Acquisition
Regulation (FAR) 6.3 and DFARS 206.3.
3. Lifecycle Quality Assurance
Comment: Several respondents
advised that requiring brand name or
proprietary equipment typically assures
that a certain level of quality and
warranty will be conveyed with the
item. The respondents expressed
concern that DoD may face difficulties
ensuring that equivalent products
provide the same level of quality
assurance as brand name or proprietary
equipment during the product’s
lifecycle. Further, one respondent
expressed dissatisfaction with placing
additional restrictions on the ability to
use brand name descriptions when
procuring complex system components,
as the action prevents DoD from making
the best decisions about the quality of
goods being used in the national
defense.
Response: The rule does not prohibit
the use of brand name descriptions,
brand name or equal descriptions, or
proprietary specifications and
standards, when necessary. Instead, the
rule encourages the development of
requirement descriptions that enable
competition, to the maximum extent
possible. For example, if a system
component to be used in national
defense requires a minimum level of
quality and reliability, those physical,
functional, and performance needs can
be expressed in the description of the
requirement and a competitive
solicitation may be issued. If the
component requirements for quality and
reliability can only be expressed in
terms of or met by a single brand name
description, proprietary specifications
or standards, or a brand name or equal
description, then the description or
specifications and standards may be
used in the acquisition; but, only after
the action is justified with sufficient
facts and rationale and approved in
accordance with FAR 6.3 and DFARS
206.3.
Comment: To mitigate life-cycle
quality assurance concerns, one
respondent suggested that solicitations
utilizing brand name or equal
descriptions include a comparable lifecycle length for the product, as
necessary, to ensure DoD receives an
equal product in terms of durability and
warranty.
Response: Requirements personnel
determine and define the minimum
physical, functional, and performance
characteristics of a requirement
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necessary to ensure it will meet DoD’s
needs. At their discretion, requirements
personnel can identify an essential lifecycle length or warranty coverage in the
description of the requirement.
Comment: Another respondent
suggested that removing the draft
proposed text at DFARS 206.302–
1(c)(2)(S–70), regarding the use of
proprietary specifications and
standards, may help alleviate concerns
about DoD receiving a necessary level of
quality assurance.
Response: The language in the rule
meets the intent of the statute at section
888(a) of the NDAA for FY 2017, which
requires that competition on DoD
contracts is not limited by the use of
proprietary specifications or standards
in solicitations, unless a justification for
such specifications or standards is
provided and approved in accordance
with FAR 6.3 and DFARS 206.3.
4. Application of Rule to Acquisitions
Valued at or Below the Simplified
Acquisition Threshold (SAT)
Comment: Some respondents advised
that the rule is unclear whether the
Government intends to apply the
justification and approval requirement
to acquisitions valued at or below the
SAT.
Response: The rule does not apply the
justification and approval requirement
to acquisitions valued at or below the
SAT. The rule adds text to DFARS
206.3, Other Than Full and Open
Competition, and DFARS 213.5,
Simplified Procedures for Certain
Commercial Items, neither of which
apply to acquisitions valued at or below
the simplified acquisition threshold.
The rule also adds text to DFARS
subpart 211.1, Selecting and Developing
Requirements Documents.
In the proposed rule, the requirement
to execute a justification and approval
when using such descriptions or
specifications and standards appeared
as a standalone statement under DFARS
211.1, with two subparagraphs directing
the contracting officer to see the
proposed rule text in DFARS 206.3 and
213.5, as applicable. The rule uses the
title of FAR 13.5, Simplified Procedures
for Certain Commercial Items, only to
refer to the procedures for the
acquisition of commercial supplies and
services in an amount greater than the
simplified acquisition threshold but not
exceeding $7 million.
The intent of the text in this subpart
is to clarify that a justification and
approval is required to include brand
name or equal descriptions, or
proprietary specifications or standards,
in DoD solicitations that use sealed
bidding, or negotiated acquisition
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25191
procedures, or simplified acquisition
procedures for certain commercial
items, as specified in the following two
subparagraphs. To clarify the intent of
the rule, the text in subpart 211.1 has
been changed from a standalone
statement to a statement that a
justification and approval is required
when using the procedures identified in
the subsequent subparagraphs; and, to
add a reference to ‘‘FAR 13.5’’ after
simplified acquisition procedures for
certain commercial items.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not create any new
DFARS clauses or amend any existing
DFARS 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 Order 13771
This rule is not subject to E.O. 13771,
because this rule is not a significant
regulatory action 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:
DoD is amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement section 888(a) of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2017,
which requires that competition in DoD
contracts not be limited through the use
of brand name or equivalent
descriptions, or proprietary
specifications or standards, in
solicitations unless a justification for
such specification is provided and
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31MYR1
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Federal Register / Vol. 84, No. 105 / Friday, May 31, 2019 / Rules and Regulations
khammond on DSKBBV9HB2PROD with RULES
approved in accordance with 10 U.S.C.
2304(f).
The objective of this final rule is to
ensure that a justification is executed
and approved prior to including brand
name or equal descriptions, or
proprietary specifications or standards,
in a solicitation that uses simplified
procedures for certain commercial items
or negotiated acquisition or sealed
bidding procedures.
No public comments were received in
response to the initial regulatory
flexibility analysis.
The Federal Procurement Data System
(FPDS) does not collect data on
contracts awarded using brand name or
equal descriptions or contracts that were
competed and included proprietary
specifications or standards. Currently,
brand name or equal descriptions are
procured through competitive
procedures, but FPDS does not identify
the subset of contracts that were
awarded competitively using such
descriptions.
FPDS can identify the number of
offers received in response to a
solicitation. This subset can help DoD
better identify the number of
competitive requirements that may have
used such descriptions, specifications,
or standards, but only received one offer
for various reasons.
As a result, FPDS identifies that there
were 127,536 contracts and orders
competed and awarded in FY 2017 that
only received one offer. Of the 127,536
new awards, 76,179(60%) of these
actions were awarded to 9,823 unique
small business entities. The proposed
rule applies to all entities who do
business with the Federal Government
and is not expected to have a significant
impact on these entities, regardless of
business size.
This rule does not include any new
reporting, recordkeeping, or other
compliance requirements for small
businesses.
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 proposed objectives.
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).
VerDate Sep<11>2014
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List of Subjects in 48 CFR Parts 206,
211, and 213
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 206, 211, and
213 are amended as follows:
■ 1. The authority citation for 48 CFR
parts 206, 211, and 213 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 206—COMPETITION
REQUIREMENTS
211.170 Use of proprietary specifications
or standards.
A justification and approval is
required to use proprietary
specifications and standards—
(1) When using sealed bidding or
negotiated acquisition procedures (see
206.302–1(S–70) for justification
requirements); or,
(2) When using the simplified
procedures for certain commercial items
at FAR 13.5 (see 213.501(a)(ii) for
justification requirements).
PART 213—SIMPLIFIED ACQUISITION
PROCEDURES
■
5. Section 213.501 is amended by—
a. Redesignating paragraph (a) as
paragraph (a)(i); and
■ b. Adding new paragraph (a)(ii) to
read as follows:
206.302–1 Only one responsible source
and no other supplies or services will
satisfy agency requirements.
213.501 Special documentation
requirements.
■
■
2. In section 206.302–1, paragraphs (c)
and (S–70) are added to read as follows:
*
*
*
*
*
(c) Application for brand-name
descriptions.
(2) Notwithstanding FAR 6.302–
1(c)(2), in accordance with section
888(a) of the National Defense
Authorization Act for Fiscal Year 2017
(Pub. L. 114–328), the justification and
approval addressed in FAR 6.303 is
required in order to use brand name or
equal descriptions.
*
*
*
*
*
(S–70) Application for proprietary
specifications or standards. In
accordance with section 888(a) of the
National Defense Authorization Act for
Fiscal Year 2017 (Pub. L. 114–328), the
justification and approval addressed in
FAR 6.303 is required in order to use
proprietary specifications and
standards.
*
*
*
*
*
PART 211—DESCRIBING AGENCY
NEEDS
3. Section 211.104 is added to read as
follows:
■
211.104 Use of brand name or equal
purchase descriptions.
A justification and approval is
required to use brand name or equal
purchase descriptions—
(1) When using sealed bidding or
negotiated acquisition procedures (see
206.302–1(c)(2) for justification
requirements); or
(2) When using the simplified
procedures for certain commercial items
at FAR 13.5 (see 213.501(a)(ii) for
justification requirement).
■ 4. Section 211.170 is added to read as
follows:
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(a) * * *
(ii) In accordance with section 888(a)
of the National Defense Authorization
Act for Fiscal Year 2017 (Pub. L. 114–
328), the justification and approval
addressed in FAR 13.501(a) is required
in order to use brand name or equal
descriptions or proprietary
specifications and standards.
[FR Doc. 2019–11305 Filed 5–30–19; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 211 and 252
[Docket DARS–2019–0022]
RIN 0750–AK42
Defense Federal Acquisition
Regulation Supplement: Repeal of
DFARS Provision Regarding
Availability of Specifications and
Standards Not Listed in the
Acquisition Streamlining and
Standardization Information System
(DFARS Case 2019–D007)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to remove a clause that is no
longer necessary.
DATES: Effective May 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Carrie Moore, telephone 571–372–6093.
SUMMARY:
E:\FR\FM\31MYR1.SGM
31MYR1
]]>Agencies
[Federal Register Volume 84, Number 105 (Friday, May 31, 2019)]
[Rules and Regulations]
[Pages 25190-25192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11305]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 206, 211, and 213
[Docket DARS-2018-0052]
RIN 0750-AJ50
Defense Federal Acquisition Regulation Supplement: Brand Name or
Equal (DFARS Case 2017-D040)
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 that requires
the use of brand name or equal descriptions, or proprietary
specifications or standards, in solicitations to be justified and
approved.
DATES: Effective May 31, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 83 FR
54696 on October 31, 2018, to implement section 888(a) of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L.
114-328), which requires that competition on DoD contracts not be
limited through the use of brand name or equal descriptions, or
proprietary specifications or standards, in solicitations, unless a
justification for such specification is provided and approved in
accordance with 10 U.S.C. 2304(f). Six respondents submitted public
comments in response to the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments and the changes made to the rule as
a result of those comments is provided, as follows:
A. Summary of Significant Changes From the Proposed Rule
The paragraphs at DFARS 211.104 and DFARS 211.170 have been updated
to clarify that the use brand name or equal descriptions or proprietary
specifications and standards shall be justified and approved when using
sealed bidding procedures, negotiated procedures, or simplified
procedures for certain commercial items.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Several respondents expressed support for the rule.
Response: DoD acknowledges the support for the rule.
2. Restrictions on Brand Name or Equal Descriptions
Comment: A respondent expressed concern that subjecting brand name
or equal descriptions to the justification and approval process will
discourage the use of solicitations that signal a preference for, but
do not require, a specific brand or product.
Response: The language in the rule meets the intent of the statute
at section 888(a) of the NDAA for FY 2017. When contracting without
providing for full and open competition (e.g., requiring a specific
brand or product particular to one manufacturer, or requiring
specifications or standards that are
[[Page 25191]]
proprietary to a specific entity), contracting officers are still
required to justify such an action and have it approved in accordance
with the processes of Federal Acquisition Regulation (FAR) 6.3 and
DFARS 206.3.
3. Lifecycle Quality Assurance
Comment: Several respondents advised that requiring brand name or
proprietary equipment typically assures that a certain level of quality
and warranty will be conveyed with the item. The respondents expressed
concern that DoD may face difficulties ensuring that equivalent
products provide the same level of quality assurance as brand name or
proprietary equipment during the product's lifecycle. Further, one
respondent expressed dissatisfaction with placing additional
restrictions on the ability to use brand name descriptions when
procuring complex system components, as the action prevents DoD from
making the best decisions about the quality of goods being used in the
national defense.
Response: The rule does not prohibit the use of brand name
descriptions, brand name or equal descriptions, or proprietary
specifications and standards, when necessary. Instead, the rule
encourages the development of requirement descriptions that enable
competition, to the maximum extent possible. For example, if a system
component to be used in national defense requires a minimum level of
quality and reliability, those physical, functional, and performance
needs can be expressed in the description of the requirement and a
competitive solicitation may be issued. If the component requirements
for quality and reliability can only be expressed in terms of or met by
a single brand name description, proprietary specifications or
standards, or a brand name or equal description, then the description
or specifications and standards may be used in the acquisition; but,
only after the action is justified with sufficient facts and rationale
and approved in accordance with FAR 6.3 and DFARS 206.3.
Comment: To mitigate life-cycle quality assurance concerns, one
respondent suggested that solicitations utilizing brand name or equal
descriptions include a comparable life-cycle length for the product, as
necessary, to ensure DoD receives an equal product in terms of
durability and warranty.
Response: Requirements personnel determine and define the minimum
physical, functional, and performance characteristics of a requirement
necessary to ensure it will meet DoD's needs. At their discretion,
requirements personnel can identify an essential life-cycle length or
warranty coverage in the description of the requirement.
Comment: Another respondent suggested that removing the draft
proposed text at DFARS 206.302-1(c)(2)(S-70), regarding the use of
proprietary specifications and standards, may help alleviate concerns
about DoD receiving a necessary level of quality assurance.
Response: The language in the rule meets the intent of the statute
at section 888(a) of the NDAA for FY 2017, which requires that
competition on DoD contracts is not limited by the use of proprietary
specifications or standards in solicitations, unless a justification
for such specifications or standards is provided and approved in
accordance with FAR 6.3 and DFARS 206.3.
4. Application of Rule to Acquisitions Valued at or Below the
Simplified Acquisition Threshold (SAT)
Comment: Some respondents advised that the rule is unclear whether
the Government intends to apply the justification and approval
requirement to acquisitions valued at or below the SAT.
Response: The rule does not apply the justification and approval
requirement to acquisitions valued at or below the SAT. The rule adds
text to DFARS 206.3, Other Than Full and Open Competition, and DFARS
213.5, Simplified Procedures for Certain Commercial Items, neither of
which apply to acquisitions valued at or below the simplified
acquisition threshold. The rule also adds text to DFARS subpart 211.1,
Selecting and Developing Requirements Documents.
In the proposed rule, the requirement to execute a justification
and approval when using such descriptions or specifications and
standards appeared as a standalone statement under DFARS 211.1, with
two subparagraphs directing the contracting officer to see the proposed
rule text in DFARS 206.3 and 213.5, as applicable. The rule uses the
title of FAR 13.5, Simplified Procedures for Certain Commercial Items,
only to refer to the procedures for the acquisition of commercial
supplies and services in an amount greater than the simplified
acquisition threshold but not exceeding $7 million.
The intent of the text in this subpart is to clarify that a
justification and approval is required to include brand name or equal
descriptions, or proprietary specifications or standards, in DoD
solicitations that use sealed bidding, or negotiated acquisition
procedures, or simplified acquisition procedures for certain commercial
items, as specified in the following two subparagraphs. To clarify the
intent of the rule, the text in subpart 211.1 has been changed from a
standalone statement to a statement that a justification and approval
is required when using the procedures identified in the subsequent
subparagraphs; and, to add a reference to ``FAR 13.5'' after simplified
acquisition procedures for certain commercial items.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule does not create any new DFARS clauses or amend any
existing DFARS 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 Order 13771
This rule is not subject to E.O. 13771, because this rule is not a
significant regulatory action 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:
DoD is amending the Defense Federal Acquisition Regulation
Supplement (DFARS) to implement section 888(a) of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2017, which requires that
competition in DoD contracts not be limited through the use of brand
name or equivalent descriptions, or proprietary specifications or
standards, in solicitations unless a justification for such
specification is provided and
[[Page 25192]]
approved in accordance with 10 U.S.C. 2304(f).
The objective of this final rule is to ensure that a justification
is executed and approved prior to including brand name or equal
descriptions, or proprietary specifications or standards, in a
solicitation that uses simplified procedures for certain commercial
items or negotiated acquisition or sealed bidding procedures.
No public comments were received in response to the initial
regulatory flexibility analysis.
The Federal Procurement Data System (FPDS) does not collect data on
contracts awarded using brand name or equal descriptions or contracts
that were competed and included proprietary specifications or
standards. Currently, brand name or equal descriptions are procured
through competitive procedures, but FPDS does not identify the subset
of contracts that were awarded competitively using such descriptions.
FPDS can identify the number of offers received in response to a
solicitation. This subset can help DoD better identify the number of
competitive requirements that may have used such descriptions,
specifications, or standards, but only received one offer for various
reasons.
As a result, FPDS identifies that there were 127,536 contracts and
orders competed and awarded in FY 2017 that only received one offer. Of
the 127,536 new awards, 76,179(60%) of these actions were awarded to
9,823 unique small business entities. The proposed rule applies to all
entities who do business with the Federal Government and is not
expected to have a significant impact on these entities, regardless of
business size.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small businesses.
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 proposed objectives.
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 206, 211, and 213
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 206, 211, and 213 are amended as follows:
0
1. The authority citation for 48 CFR parts 206, 211, and 213 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 206--COMPETITION REQUIREMENTS
0
2. In section 206.302-1, paragraphs (c) and (S-70) are added to read as
follows:
206.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
* * * * *
(c) Application for brand-name descriptions.
(2) Notwithstanding FAR 6.302-1(c)(2), in accordance with section
888(a) of the National Defense Authorization Act for Fiscal Year 2017
(Pub. L. 114-328), the justification and approval addressed in FAR
6.303 is required in order to use brand name or equal descriptions.
* * * * *
(S-70) Application for proprietary specifications or standards. In
accordance with section 888(a) of the National Defense Authorization
Act for Fiscal Year 2017 (Pub. L. 114-328), the justification and
approval addressed in FAR 6.303 is required in order to use proprietary
specifications and standards.
* * * * *
PART 211--DESCRIBING AGENCY NEEDS
0
3. Section 211.104 is added to read as follows:
211.104 Use of brand name or equal purchase descriptions.
A justification and approval is required to use brand name or equal
purchase descriptions--
(1) When using sealed bidding or negotiated acquisition procedures
(see 206.302-1(c)(2) for justification requirements); or
(2) When using the simplified procedures for certain commercial
items at FAR 13.5 (see 213.501(a)(ii) for justification requirement).
0
4. Section 211.170 is added to read as follows:
211.170 Use of proprietary specifications or standards.
A justification and approval is required to use proprietary
specifications and standards--
(1) When using sealed bidding or negotiated acquisition procedures
(see 206.302-1(S-70) for justification requirements); or,
(2) When using the simplified procedures for certain commercial
items at FAR 13.5 (see 213.501(a)(ii) for justification requirements).
PART 213--SIMPLIFIED ACQUISITION PROCEDURES
0
5. Section 213.501 is amended by--
0
a. Redesignating paragraph (a) as paragraph (a)(i); and
0
b. Adding new paragraph (a)(ii) to read as follows:
213.501 Special documentation requirements.
(a) * * *
(ii) In accordance with section 888(a) of the National Defense
Authorization Act for Fiscal Year 2017 (Pub. L. 114-328), the
justification and approval addressed in FAR 13.501(a) is required in
order to use brand name or equal descriptions or proprietary
specifications and standards.
[FR Doc. 2019-11305 Filed 5-30-19; 8:45 am]
BILLING CODE 5001-06-P
