Defense Federal Acquisition Regulation Supplement: Preference for Certain Commercial Services (DFARS Case 2018-D016), 39203-39204 [2019-16767]
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Federal Register / Vol. 84, No. 154 / Friday, August 9, 2019 / Rules and Regulations
Ms.
Amy G. Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.203–7003
[Amended]
3. Amend section 252.203–7003 by—
a. Removing the clause date ‘‘(DEC
2012)’’ and adding ‘‘(AUG 2019)’’ in its
place;
■ a. Removing ‘‘Investigative Policy and
Oversight’’ and adding ‘‘Administrative
Investigations’’ in its place;
■ b. Removing ‘‘Suite 11H25’’ and
adding ‘‘Suite 14L25’’ in its place; and
■ b. Removing ‘‘866–429–8011.’’ and
adding ‘‘866–429–8011. Website:
https://www.dodig.mil/Programs/
Contractor-Disclosure-Program/.’’ in its
place.
■
■
252.203–7004
[Amended]
4. Amend section 252.203–7004 by—
a. Removing the clause date ‘‘(MAY
2019)’’ and adding ‘‘(AUG 2019)’’ in its
place; and
■ c. In paragraph (c)(1), removing
‘‘https://www.dodig.mil/hotline/hotline_
posters.htm’’ and adding, ‘‘https://
www.dodig.mil/Resources/Posters-andBrochures/’’ in its place.
■
■
[FR Doc. 2019–16771 Filed 8–8–19; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212 and 237
[Docket DARS–2019–0033]
RIN 0750–AJ79
Defense Federal Acquisition
Regulation Supplement: Preference for
Certain Commercial Services (DFARS
Case 2018–D016)
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 partially implement a
section of the National Defense
Authorization Act for Fiscal Year 2017
that provides a preference for the
acquisition of certain commercial
services in contracts that exceed the
simplified acquisition threshold. The
statute provides for a two-tier approval
process, depending on value of the
acquisition, if no commercial items are
suitable.
DATES: Effective August 9, 2019.
khammond on DSKBBV9HB2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
15:42 Aug 08, 2019
Jkt 247001
I. Background
This final rule partially implements
section 876 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2017 (Pub. L. 114–328).
Section 876 requires revision of the
guidance issued pursuant to section 855
of the NDAA for FY 2016 (Pub. L. 114–
92) (final DFARS rule published in the
Federal Register under DFARS Case
2016–D006 on January 31, 2018 (83 FR
4431)) to provide a preference for
certain commercial services, unless the
appropriate official determines in
writing that no commercial items are
suitable to meet the agency’s needs.
Different approval levels are provided
for contracts in excess of $10 million,
and contracts that exceed the simplified
acquisition threshold but do not exceed
$10 million. This rule addresses
facilities-related services, knowledgebased services (except engineering
services), medical services, and
transportation services. Construction
services are being addressed under
DFARS Case 2019–D034.
II. Discussion and Analysis
The requirements of section 876 have
been implemented by adding a new
DFARS section 212.272, Preference for
certain commercial products and
services. A cross-reference to the new
section has been added in part 237,
Service Contracting, at DFARS 237.102.
Also provided in the new DFARS
section 212.272, is a cross-reference to
the implementation of section 856 of the
NDAA for FY 2016 at DFARS 239.101
related to the acquisition of information
technology products and services.
III. Publication of This Final Rule for
Public Comment Is Not Required by
Statute
The statute that applies to the
publication of the Federal Acquisition
Regulation (FAR) is 41 U.S.C. 1707
entitled ‘‘Publication of Proposed
Regulations.’’ Paragraph (a)(1) of the
statute requires that a procurement
policy, regulation, procedure or form
(including an amendment or
modification thereof) must be published
for public comment if it relates to the
expenditure of appropriated funds, and
has either a significant effect beyond the
internal operating procedures of the
agency issuing the policy, regulation,
procedure or form, or has a significant
cost or administrative impact on
contractors or offerors. This final rule is
not required to be published for public
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Fmt 4700
Sfmt 4700
39203
comment, because it only specifies the
approval process if acquiring certain
noncommercial services. These
requirements affect only the internal
operating procedures of the
Government.
IV. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This final rule does not create any
new DFARS provisions or clauses or
modify any DFARS existing provision or
clauses.
V. 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.
VI. Executive Order 13771
This final rule is not subject to E.O.
13771, because this rule is not a
significant regulatory action under E.O.
12866.
VII. Regulatory Flexibility Act
Because a notice of proposed
rulemaking and an opportunity for
public comment are not required to be
given for this rule under 41 U.S.C.
1707(a)(1) (see section III. of this
preamble), the analytical requirements
of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) are not applicable.
Accordingly, no regulatory flexibility
analysis is required, and none has been
prepared.
VIII. 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).
E:\FR\FM\09AUR1.SGM
09AUR1
39204
Federal Register / Vol. 84, No. 154 / Friday, August 9, 2019 / Rules and Regulations
List of Subjects in 48 CFR Parts 212 and
237
Government procurement.
Jennifer L. Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Therefore, 48 CFR parts 212 and 237
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 212 and 237 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
preference for commercial facilitiesrelated services, knowledge-based
services (except engineering services),
medical services, or transportation
services, as required by section 876 of
the National Defense Authorization Act
for Fiscal Year 2017 (Pub. L. 114–328).
(2) Public-private competitions. See
PGI 207.302 for information on the
Governmentwide moratorium and
restrictions on public-private
competitions conducted pursuant to
Office of Management and Budget
(OMB) Circular A–76.
*
*
*
*
*
[FR Doc. 2019–16767 Filed 8–8–19; 8:45 am]
PART 212—ACQUISITION OF
COMMERCIAL ITEMS
BILLING CODE 5001–06–P
2. Add section 212.272 to subpart
212.2 to read as follows:
DEPARTMENT OF DEFENSE
212.272 Preference for certain commercial
products and services.
Defense Acquisition Regulations
System
■
(a) As required by section 855 of the
National Defense Authorization Act for
Fiscal Year 2016 (Pub. L. 114–92), for
requirements relating to the acquisition
of commercial information technology
products and services, see 239.101.
(b)(1) As required by section 876 of
the National Defense Authorization Act
of Fiscal Year 2017 (Pub. L. 114–328),
a contracting officer may not enter into
a contract above the simplified
acquisition threshold for facilitiesrelated services, knowledge-based
services (except engineering services),
medical services, or transportation
services that are not commercial
services, unless the appropriate official
specified in paragraph (b)(2) of this
section determines in writing that no
commercial services are suitable to meet
the agency’s needs as provided in
section 10 U.S.C. 2377(c)(2).
(2) The following officials are
authorized to make the determination
specified in paragraph (b)(1) of this
section:
(i) For contracts above $10 million,
the head of the contracting activity, the
combatant commander of the combatant
command concerned, or the Under
Secretary of Defense for Acquisition and
Sustainment (as applicable).
(ii) For contracts in an amount above
the simplified acquisition threshold and
at or below $10 million, the contracting
officer.
khammond on DSKBBV9HB2PROD with RULES
PART 237—SERVICE CONTRACTING
2. Amend section 237.102 by revising
paragraph (b) to read as follows:
■
237.102
Policy.
(b)(1) Preference for certain
commercial services. See 212.272 for
procedures for implementation of the
VerDate Sep<11>2014
15:42 Aug 08, 2019
Jkt 247001
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: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement sections of the
National Defense Authorization Act for
Fiscal Years 2017 and 2018. This rule
revises requirements for definitizing
undefinitized contract actions.
DATES: Effective August 9, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy G. Williams, telephone 571–372–
6106.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 84 FR 4429 on
February 15, 2019, to implement section
811 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2017 and section 815 of the
NDAA for FY 2018. 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. Three respondents provided
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Fmt 4700
Sfmt 4700
public comments in response to the
proposed rule.
II. Discussion and Analysis
A. Summary of Significant Changes
From the Proposed Rule
There are changes to the definition of
‘‘qualifying proposal’’ at 217.7401 as a
result of public comments. In addition,
DoD has delegated some authorities to
the head of the contracting activity.
B. Analysis of Public Comments
1. Support for the Rule
Comment: One respondent stated
unqualified support for the rule.
Response: Noted.
2. Timely Definitization
Comment: One respondent indicated
that the proposed rule impedes the
ability of contracting officers to
definitize UCAs timely and
recommended that the rule be
rescinded. The respondent asserted that
the application of a higher profit factor
after receipt of the qualifying proposal
but prior to definitization of the UCA
encourages contractors to stall until
after the 180-day window has closed,
since most contractors are motivated by
profit.
Response: This rule modifies the
requirements on UCAs related to the
calculation of risk-based profit
objectives. The language at DFARS
215.404–71–3(d)(2)(i) regarding profit
allowed on the contract when a
contracting officer definitizes the
contract after the end of the 180-day
period is consistent with section 811 of
the NDAA for FY 2017. However, when
definitizing within the 180-day period,
the requirement for the contracting
officer to assess the extent to which
costs have been incurred prior to
definitization when determining
contract type risk remains unchanged in
this rule. When costs have been
incurred prior to definitization, DFARS
215.404–71–3(d)(2)(i) states the
contracting officer generally regards the
contract type risk to be in the low end
of the designated range. As such, this
rule encourages submission of timely
qualifying proposals by contractors and
timely definitization by contracting
officers.
3. Unilateral Definitization
Comment: One respondent indicated
that restricting the authority of a
contracting officer to unilaterally
definitize a UCA with a value greater
than $50 million without the service
acquisition executive for the military
department approval ensures the UCA
will not be definitized within the 180
E:\FR\FM\09AUR1.SGM
09AUR1
]]>Agencies
[Federal Register Volume 84, Number 154 (Friday, August 9, 2019)]
[Rules and Regulations]
[Pages 39203-39204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16767]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212 and 237
[Docket DARS-2019-0033]
RIN 0750-AJ79
Defense Federal Acquisition Regulation Supplement: Preference for
Certain Commercial Services (DFARS Case 2018-D016)
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 partially implement a
section of the National Defense Authorization Act for Fiscal Year 2017
that provides a preference for the acquisition of certain commercial
services in contracts that exceed the simplified acquisition threshold.
The statute provides for a two-tier approval process, depending on
value of the acquisition, if no commercial items are suitable.
DATES: Effective August 9, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-
372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule partially implements section 876 of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L.
114-328). Section 876 requires revision of the guidance issued pursuant
to section 855 of the NDAA for FY 2016 (Pub. L. 114-92) (final DFARS
rule published in the Federal Register under DFARS Case 2016-D006 on
January 31, 2018 (83 FR 4431)) to provide a preference for certain
commercial services, unless the appropriate official determines in
writing that no commercial items are suitable to meet the agency's
needs. Different approval levels are provided for contracts in excess
of $10 million, and contracts that exceed the simplified acquisition
threshold but do not exceed $10 million. This rule addresses
facilities-related services, knowledge-based services (except
engineering services), medical services, and transportation services.
Construction services are being addressed under DFARS Case 2019-D034.
II. Discussion and Analysis
The requirements of section 876 have been implemented by adding a
new DFARS section 212.272, Preference for certain commercial products
and services. A cross-reference to the new section has been added in
part 237, Service Contracting, at DFARS 237.102. Also provided in the
new DFARS section 212.272, is a cross-reference to the implementation
of section 856 of the NDAA for FY 2016 at DFARS 239.101 related to the
acquisition of information technology products and services.
III. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled ``Publication
of Proposed Regulations.'' Paragraph (a)(1) of the statute requires
that a procurement policy, regulation, procedure or form (including an
amendment or modification thereof) must be published for public comment
if it relates to the expenditure of appropriated funds, and has either
a significant effect beyond the internal operating procedures of the
agency issuing the policy, regulation, procedure or form, or has a
significant cost or administrative impact on contractors or offerors.
This final rule is not required to be published for public comment,
because it only specifies the approval process if acquiring certain
noncommercial services. These requirements affect only the internal
operating procedures of the Government.
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This final rule does not create any new DFARS provisions or clauses
or modify any DFARS existing provision or clauses.
V. 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.
VI. Executive Order 13771
This final rule is not subject to E.O. 13771, because this rule is
not a significant regulatory action under E.O. 12866.
VII. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
VIII. 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).
[[Page 39204]]
List of Subjects in 48 CFR Parts 212 and 237
Government procurement.
Jennifer L. Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212 and 237 are amended as follows:
0
1. The authority citation for 48 CFR parts 212 and 237 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Add section 212.272 to subpart 212.2 to read as follows:
212.272 Preference for certain commercial products and services.
(a) As required by section 855 of the National Defense
Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), for
requirements relating to the acquisition of commercial information
technology products and services, see 239.101.
(b)(1) As required by section 876 of the National Defense
Authorization Act of Fiscal Year 2017 (Pub. L. 114-328), a contracting
officer may not enter into a contract above the simplified acquisition
threshold for facilities-related services, knowledge-based services
(except engineering services), medical services, or transportation
services that are not commercial services, unless the appropriate
official specified in paragraph (b)(2) of this section determines in
writing that no commercial services are suitable to meet the agency's
needs as provided in section 10 U.S.C. 2377(c)(2).
(2) The following officials are authorized to make the
determination specified in paragraph (b)(1) of this section:
(i) For contracts above $10 million, the head of the contracting
activity, the combatant commander of the combatant command concerned,
or the Under Secretary of Defense for Acquisition and Sustainment (as
applicable).
(ii) For contracts in an amount above the simplified acquisition
threshold and at or below $10 million, the contracting officer.
PART 237--SERVICE CONTRACTING
0
2. Amend section 237.102 by revising paragraph (b) to read as follows:
237.102 Policy.
(b)(1) Preference for certain commercial services. See 212.272 for
procedures for implementation of the preference for commercial
facilities-related services, knowledge-based services (except
engineering services), medical services, or transportation services, as
required by section 876 of the National Defense Authorization Act for
Fiscal Year 2017 (Pub. L. 114-328).
(2) Public-private competitions. See PGI 207.302 for information on
the Governmentwide moratorium and restrictions on public-private
competitions conducted pursuant to Office of Management and Budget
(OMB) Circular A-76.
* * * * *
[FR Doc. 2019-16767 Filed 8-8-19; 8:45 am]
BILLING CODE 5001-06-P
