Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Provision Related to Disclosure of Information for Litigation Support (DFARS Case 2019-D021), 58331-58332 [2019-23802]

Download as PDF Federal Register / Vol. 84, No. 211 / Thursday, October 31, 2019 / Rules and Regulations Information by Litigation Support Contractors, in a solicitation. DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 204, 209, 212, and 252 [Docket DARS–2019–0065] RIN 0750–AK58 Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Provision Related to Disclosure of Information for Litigation Support (DFARS Case 2019–D021) 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 provision that is no longer necessary, pursuant to action taken by the Regulatory Reform Task Force. SUMMARY: DATES: Effective October 31, 2019. Ms. Carrie Moore, telephone 571–372–6093. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: khammond on DSKJM1Z7X2PROD with RULES I. Background DoD is amending the DFARS to remove DFARS provision 252.204–7013, Limitations on the Use or Disclosure of Information by Litigation Support Contractors, its associated prescription at 204.7403 and related text at 209.505– 4(b)(ii) and 212.301. This provision is included in solicitations for the acquisition of litigation support services. The provision includes a representation that, by submission of its offer, the offeror agrees to handle and protect all litigation information and documentation as described in the provision, indemnify the Government from any liability or claim that arises from the offeror’s misuse of the litigation information, and ensure its employees are subject to the same use and nondisclosure obligations stated in the provision prior to accessing any litigation information. The provision also notifies offerors that third parties holding proprietary rights or any other legally protectable interest in the provided litigation information have the right of direct action against the offeror for any unauthorized use or disclosure by the offeror. DFARS provision 252.204–7013 is unnecessary. The same information is provided to offerors by including DFARS clause 252.204–7014, Limitations on the Use or Disclosure of VerDate Sep<11>2014 16:08 Oct 30, 2019 Jkt 250001 II. Discussion and Analysis DFARS clause 252.204–7014 implements the authority and requirements of 10 U.S.C. 129d, which permits DoD to disclose information to a litigation support contractor if the disclosure is for the sole purpose of providing administrative, technical, or professional services to DoD in anticipation of or during litigation. The statute also requires that, under a contract, the contractor agree to and acknowledge specific terms and conditions on the use and disclosure of the information, and that any violation of these terms and conditions is a basis for termination of the litigation support contract. DFARS clause 252.204–7014 is included in all solicitations and contracts that involve litigation support services. The clause contains all of the information in DFARS provision 252.204–7013, as well as a statement that violation of the terms and conditions of the clause is a basis for termination of the contract. As such, the DFARS provision is redundant and can be removed from the DFARS. The repeal of the DFARS provision implements 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 the provision. Subsequently, the DoD Task Force reviewed the requirements of DFARS provision 252.204–7013 and determined that it could be repealed. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule only removes obsolete DFARS provision 252.204–7013, Limitations on the Use or Disclosure of Information by Litigation Support Contractors. This rule does not create any new provisions or clauses or impose any new requirements on contracts at or PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 58331 below the simplified acquisition threshold and for commercial items, including commercially available offthe-shelf items. IV. 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 Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) 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 DoD is not issuing a new regulation; rather, this rule is merely removing an unnecessary provision from the DFARS. 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 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 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. E:\FR\FM\31OCR1.SGM 31OCR1 58332 Federal Register / Vol. 84, No. 211 / Thursday, October 31, 2019 / Rules and Regulations 1707(a)(1) (see section IV. 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. 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 204, 209, 212, and 252 FOR FURTHER INFORMATION CONTACT: PART 212—ACQUISITION OF COMMERCIAL ITEMS 212.301 [Amended] 4. Amend section 212.301 by— a. Removing paragraph (f)(ii)(E); b. Redesignating paragraphs (f)(ii)(F) and (G) as paragraphs (f)(ii)(E) and (F), respectively; ■ c. In the newly redesignated (f)(ii)(E) removing ‘‘204.7403(b)’’ and adding ‘‘204.7403(a)’’ in its place; and ■ d. In the newly redesignated (f)(ii)(F) removing ‘‘204.7403(c)’’ and adding ‘‘204.7403(b)’’ in its place. ■ ■ ■ PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES Government procurement. 252.204–7013 Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. [Removed and Reserved] 5. Remove and reserve section 252.204–7013. ■ Therefore, 48 CFR parts 204, 209, 212, and 252 are amended as follows: 1. The authority citation for 48 CFR parts 204, 209, 212, and 252 continues to read as follows: ■ 252.204–7014 [Amended] 6. Amend section 252.204–7014, in the introductory text, by removing ‘‘204.7403(b)’’ and adding ‘‘204.7403(a)’’ in its place. ■ 252.204–7015 Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. [Amended] PART 204—ADMINISTRATIVE AND INFORMATION MATTERS 7. Amend section 252.204–7015, in the introductory text, by removing ‘‘204.7403(c)’’ and adding ‘‘204.7403(b)’’ in its place. 204.7403 [FR Doc. 2019–23802 Filed 10–30–19; 8:45 am] ■ [Amended] BILLING CODE 5001–06–P 2. Amend section 204.7403 by— ■ a. In the section heading, removing ‘‘Solicitation provision and contract’’ and adding ‘‘Contract’’ in its place; ■ b. Removing paragraph (a); and ■ c. Redesignating paragraphs (b) and (c) as paragraphs (a) and (b), respectively. ■ DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 207, 215, 216, and 234 [Docket DARS–2019–0026] RIN 0750–AK38 PART 209—CONTRACTOR QUALIFICATIONS ■ Defense Federal Acquisition Regulation Supplement: Reliability and Maintainability in Weapon System Design (DFARS Case 2019–D003) 209.505–4 Obtaining access to proprietary information. AGENCY: khammond on DSKJM1Z7X2PROD with RULES 3. Revise section 209.505–4(b)(ii) to read as follows: (b) * * * (ii) For litigation support contractors accessing litigation information, including that originating from third parties, use and non-disclosure requirements are addressed through the use of the clause at 252.204–7014, as prescribed at 204.7403(a). Pursuant to the clause, litigation support contractors are not required to enter into nondisclosure agreements directly with any third party asserting restrictions on any litigation information. VerDate Sep<11>2014 16:08 Oct 30, 2019 Jkt 250001 Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. 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 2018 that requires the use of reliability and maintainability sustainment factors in weapon system design. SUMMARY: DATES: PO 00000 Effective October 31, 2019. Frm 00030 Fmt 4700 Sfmt 4700 Ms. Kimberly Bass, telephone 571–372– 6174. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 84 FR 125 on June 28, 2019, to implement section 834 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018. Section 834 of the NDAA for FY 2018 amends 10 U.S.C. to add section 2443, sustainment factors in weapon system design which requires program managers or comparable requiring activity officials exercising program management responsibilities to ensure that reliability and maintainability are included in the performance attributes of the key performance parameters on sustainment during the development of capabilities requirements for major weapon systems design and contracts for the— • Engineering and manufacturing development of a weapon system, including embedded software; or • Production of a weapon system, including embedded software. As a matter of policy, the Under Secretary of Defense for Acquisition and Sustainment directed the application of the requirements of 10 U.S.C. 2443 to the technical maturation and risk reduction phase. No public comments were received on the proposed rule, and no changes are made in the final rule. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule does not propose to create any new provisions or clauses or impact any existing provisions or clauses. III. 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. E:\FR\FM\31OCR1.SGM 31OCR1

Agencies

[Federal Register Volume 84, Number 211 (Thursday, October 31, 2019)]
[Rules and Regulations]
[Pages 58331-58332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23802]



[[Page 58331]]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204, 209, 212, and 252

[Docket DARS-2019-0065]
RIN 0750-AK58


Defense Federal Acquisition Regulation Supplement: Repeal of 
DFARS Provision Related to Disclosure of Information for Litigation 
Support (DFARS Case 2019-D021)

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 remove a provision that is 
no longer necessary, pursuant to action taken by the Regulatory Reform 
Task Force.

DATES: Effective October 31, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is amending the DFARS to remove DFARS provision 252.204-7013, 
Limitations on the Use or Disclosure of Information by Litigation 
Support Contractors, its associated prescription at 204.7403 and 
related text at 209.505-4(b)(ii) and 212.301. This provision is 
included in solicitations for the acquisition of litigation support 
services. The provision includes a representation that, by submission 
of its offer, the offeror agrees to handle and protect all litigation 
information and documentation as described in the provision, indemnify 
the Government from any liability or claim that arises from the 
offeror's misuse of the litigation information, and ensure its 
employees are subject to the same use and nondisclosure obligations 
stated in the provision prior to accessing any litigation information. 
The provision also notifies offerors that third parties holding 
proprietary rights or any other legally protectable interest in the 
provided litigation information have the right of direct action against 
the offeror for any unauthorized use or disclosure by the offeror.
    DFARS provision 252.204-7013 is unnecessary. The same information 
is provided to offerors by including DFARS clause 252.204-7014, 
Limitations on the Use or Disclosure of Information by Litigation 
Support Contractors, in a solicitation.

II. Discussion and Analysis

    DFARS clause 252.204-7014 implements the authority and requirements 
of 10 U.S.C. 129d, which permits DoD to disclose information to a 
litigation support contractor if the disclosure is for the sole purpose 
of providing administrative, technical, or professional services to DoD 
in anticipation of or during litigation. The statute also requires 
that, under a contract, the contractor agree to and acknowledge 
specific terms and conditions on the use and disclosure of the 
information, and that any violation of these terms and conditions is a 
basis for termination of the litigation support contract. DFARS clause 
252.204-7014 is included in all solicitations and contracts that 
involve litigation support services. The clause contains all of the 
information in DFARS provision 252.204-7013, as well as a statement 
that violation of the terms and conditions of the clause is a basis for 
termination of the contract. As such, the DFARS provision is redundant 
and can be removed from the DFARS.
    The repeal of the DFARS provision implements 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 the provision. Subsequently, the DoD Task Force 
reviewed the requirements of DFARS provision 252.204-7013 and 
determined that it could be repealed.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule only removes obsolete DFARS provision 252.204-7013, 
Limitations on the Use or Disclosure of Information by Litigation 
Support Contractors. This rule does not create any new provisions or 
clauses or impose any new requirements on contracts at or below the 
simplified acquisition threshold and for commercial items, including 
commercially available off-the-shelf items.

IV. 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 Office of Federal Procurement Policy 
statute (codified at title 41 of the United States Code). Specifically, 
41 U.S.C. 1707(a)(1) 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 DoD is not 
issuing a new regulation; rather, this rule is merely removing an 
unnecessary provision from the DFARS.

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 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

    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.

[[Page 58332]]

1707(a)(1) (see section IV. 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.

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 204, 209, 212, and 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 204, 209, 212, and 252 are amended as 
follows:

0
1. The authority citation for 48 CFR parts 204, 209, 212, and 252 
continues to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 204--ADMINISTRATIVE AND INFORMATION MATTERS


204.7403  [Amended]

0
2. Amend section 204.7403 by--
0
a. In the section heading, removing ``Solicitation provision and 
contract'' and adding ``Contract'' in its place;
0
b. Removing paragraph (a); and
0
c. Redesignating paragraphs (b) and (c) as paragraphs (a) and (b), 
respectively.

PART 209--CONTRACTOR QUALIFICATIONS

0
3. Revise section 209.505-4(b)(ii) to read as follows:


209.505-4   Obtaining access to proprietary information.

    (b) * * *
    (ii) For litigation support contractors accessing litigation 
information, including that originating from third parties, use and 
non-disclosure requirements are addressed through the use of the clause 
at 252.204-7014, as prescribed at 204.7403(a). Pursuant to the clause, 
litigation support contractors are not required to enter into non-
disclosure agreements directly with any third party asserting 
restrictions on any litigation information.

PART 212--ACQUISITION OF COMMERCIAL ITEMS


212.301   [Amended]

0
4. Amend section 212.301 by--
0
a. Removing paragraph (f)(ii)(E);
0
b. Redesignating paragraphs (f)(ii)(F) and (G) as paragraphs (f)(ii)(E) 
and (F), respectively;
0
c. In the newly redesignated (f)(ii)(E) removing ``204.7403(b)'' and 
adding ``204.7403(a)'' in its place; and
0
d. In the newly redesignated (f)(ii)(F) removing ``204.7403(c)'' and 
adding ``204.7403(b)'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.204-7013   [Removed and Reserved]

0
5. Remove and reserve section 252.204-7013.


252.204-7014   [Amended]

0
6. Amend section 252.204-7014, in the introductory text, by removing 
``204.7403(b)'' and adding ``204.7403(a)'' in its place.


252.204-7015   [Amended]

0
7. Amend section 252.204-7015, in the introductory text, by removing 
``204.7403(c)'' and adding ``204.7403(b)'' in its place.

[FR Doc. 2019-23802 Filed 10-30-19; 8:45 am]
 BILLING CODE 5001-06-P